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17625-S 


A TREATISE 

ON  THE 

LAWS  GOVERNING 

THE 

Exclusion  and  Expulsion 
of  Aliens 

IN  THE 

UNITED  STATES 


BY 

CLEMENT  L.  BOUVE 

Of  the  District  of  Columbia  Bar 
Member  of  the  American  Society  of  International  Lavr 


Washington,  D.  C. 
JOHN  BYRNE  & CO. 
1912 


Copyright,  1912 

By  CLEMENT  L.  BOUVfe 


3^5.  | 

but 


TO 

MY  FATHER 


310531 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/treatiseonlawsgoOObouv 


PREFACE 


The  purpose  of  this  book  is  to  present  the  general  result 
of  the  decisions  of  the  Federal  Courts  which  have  been 
rendered  in  cases  involving  the  right  of  foreigners  to  enter 
or  remain  in  the  United  States  under  the  provisions  of  the 
statutes  passed  dealing  with  their  exclusion  and  expulsion 
from  this  country  during  the  past  thirty  years.  The 
author  has  attempted  to  show  that,  in  the  United  States, 
the  right  of  foreigners  to  enter  or  remain  cannot  be  ade- 
quately considered  as  a purely  administrative  question, 
or  one  the  solution  of  which  lies  in  the  application 
of  the  accepted  precepts  of  international  law  governing 
the  subject;  that  the  acts  of  Congress  the  purpose  of  which 
was  to  regulate  the  admission  and  residence  of  aliens  in 
the  United  States,  together  with  the  judicial  decisions  by 
which  they  have  been  enforced,  form  a distinct  and  im- 
portant branch  of  our  municipal  law.  That  this  is  so  ap- 
pears not  only  from  the  abundant  list  of  cases  adjudicated 
since  the  early  days  of  Congressional  legislation  on  immi- 
gration, but  from  a casual  glance  at  the  decisions  which  are 
being  handed  down  to-day  in  the  Circuit  and  District 
Courts. 

Although  the  work  is  primarily  designed  for  the  use  of 
those  engaged  in  practice  before  the  courts,  or  in  De- 
partmental practice,  whether  at  ports  of  entry  or  before 
the  Bureau  of  Immigration  at  Washington,  it  is  thought 
that  it  may  contain  matter  of  value  to  those  whose  office 
demands  from  time  to  time  the  consideration  of  questions 
concerning  the  exclusion  and  expulsion  of  aliens  from  the 
broad  standpoint  of  the  law  of  nations. 

The  compilation  of  foreign  laws  contained  in  the  ap- 
pendix was  to  a large  extent  made  simple  by  the  assistance 
provided  by  M.  Martini’s  excellent  work,  L’Expulsion  des 
Etrangers,  in  which  many  of  these  laws,  particularly  those 


vi 


Preface. 


of  the  European  countries,  were  carefully  compiled,  and 
appear  here  translated  from  the  French. 

For  the  presence  in  the  appendix  of  the  laws  or  sum- 
maries of  laws,  consisting  mainly  of  those  of  Great  Britain 
and  her  Colonies,  the  author  acknowledges  his  grateful 
indebtedness  to  Mr.  Daniel  J.  Keefe,  Commissioner  Gen- 
eral of  Immigration,  the  officers  of  his  Law  Division,  and 
particularly  to  Mr.  W.  W.  Husband,  formerly  with  the 
Immigration  Commission,  and  now  Chief  of  the  Contract 
Labor  Division  of  the  Department  of  Commerce  and  Labor. 
And  it  is  with  a sense  of  deep  gratitude  that  he  acknowl- 
edges the  encouragement  and  painstaking  assistance  of 
Mr.  A.  Warner  Parker,  law  officer  of  the  Bureau  of  Im- 
migration, during  the  greater  period  of  the  preparation 
of  this  work,  to  whose  suggestions,  criticisms,  and 
careful  revision  of  many  portions  thereof  whatever  merit 
it  may  be  found  to  contain  will  be  in  large  part  due. 

Washington,  Sept.  12, 1912. 


TABLE  OF  CONTENTS. 


Page. 

Table  of  cases  cited  ix 

CHAPTER  I. 

Power  and  Methods  of  Exclusion  and  Expulsion  1 

CHAPTER  II. 

The  Existing  Immigration  Law  149 

CHAPTER  HI. 

Status  321 

CHAPTER  IV. 

Judicial  Review  of  Administrative  Decisions  477 

chapter  v. 

Evidence  547 

CHAPTER  VI. 

Deportation  Procedure  614 

APPENDIX. 

A.  Some  foreign  laws  regarding  the  expulsion  and  ex- 
clusion of  aliens — 

Argentine  Republic  685 

Australia  687 

Barbadoes  693 

Belgium  693 

Bermuda  694 

Brazil  695 

Canada — 

Chinese  Immigration  Act  697 

Immigration  Act  (6  Edward  VII)  710 

Cape  Colony  729 

Chile  730 

Cuba  731 

France  731 

Great  Britain  733 

Jamaica  745 

Luxemburg  747 

vii 


Table  of  Contents.  viii 

Page. 

Mexico  751 

Natal  760 

The  Netherlands  762 

New  Zealand  766 

Roumania  767 

Russia  769 

Southern  Rhodesia  773 

Switzerland  773 

Transvaal  779 

Trinidad,  West  Indies  792 

Uruguay  794 

Venezuela  795 

B.  Laws  relating  to  the  Admission  of  Chinese  into  the 

United  States  797 

Act  of  May  6th,  1882  as  amended  by  Act  of  July 

5th,  1884  797 

Act  of  Sept.  13th,  1888  802 

Act  of  May  5th,  1892  806 

Act  of  Nov.  3rd,  1893  810 

Joint  resolution  of  July  7th,  1898  811 

Act  of  April  30th,  1900  812 

Act  of  June  6th,  1900  812 

Act  of  Mar.  3rd,  1901  813 

Act  of  April  29th  1902,  as  amended  by  Act  of 

April  27th,  1904  813 

Act  of  Feb.  20th,  1907,  Section  25  815 

Executive  order  of  the  Governor  of  the  Philip- 
pines   816 

C.  Regulations  governing  the  Admission  of  Chinese  into 

the  United  States  818 

D.  White  Slave  Traffic  Act  (June  25th,  1910), 846 

E.  Philippine  Islands  851 

Act  No.  317  of  the  Philippine  Commission  851 

Act  No.  702  of  the  Philippine  Commission 851 

Index  857 


TABLE  OF  CASES. 

SUPREME  COURT  OE  THE  UNITED  STATES. 

Ah  How  v.  United  States,  Feb.,  1904,  193  U.  S.  65,  48  Law  Ed.  619. 

33,  39,  98,  101,  565,  571,  603,  617,  630,  636,  663,  667 

Chae  Chan  Ping  v.  United  States,  May,  1889,  130  U.  S.  581,  32  Law 

Ed.  1068 4,  9,  16,  22,  29,  47,  50,  54,  86,  92,  327 

Chew  Heong  v.  United  States,  Dec.,  1884,  112  U.  S.  536,  28  Law  Ed. 

770 27,  44,  85,  88,  93,  354,  493,  531,  577,  582 

Chin  Bak  Kan  v.  United  States,  June,  1902,  186  U.  S.  193,  46  Law 

Ed.  1121. . .93,  337,  568,  569,  617,  628,  630,  631,  632,  634,  637,  650,  652 
Chin  Yow  v.  United  States,  Jan.,  1908,  208  U.  S.  8,  52  Law  Ed.  369. . 

140,  463,  497,  500,  514,  516,  523,  527,  541,  544,  545,  556,  623 

Church  of  Holy  Trinity  v.  United  States,  Feb.,  1892,  143  U.  S.  457, 

36  Law  Ed.  226 66,  67,  72,  447 


Chy  Lung  v.  Freeman,  Mar.,  1876,  92  U.  S.  275,  23  Law  Ed.  550. ...  59 

Cie.  Francaise  A Yapeur  v.  State  Board  of  Health,  June,  1902,  186 

U.  S.  380,  46  Law  Ed.  1209 78 

Ekiu  v.  United  States,  Dec.,  1891,  142  U.  S.  651,  35  Law  Ed.  1146. 


. .16,  18,  74,  76,  136,  250,  297,  336,  337,  480,  481,  485,  493,  531,  618,  647 
Fok  Young  Yo  v.  United  States,  May,  1902,  185  U.  S.  296,  46  Law 

Ed.  917.  .15,  19,  37,  93,  137,  160,  280,  281,  337,  502,  525,  537,  655,  660 
Fong  Yue  Ting  v.  United  States,  May,  1893,  149  U.  S.  698,  37  Law 

Ed.  905.... 4,  7,  8,  9,  16,  48,  51,  53,  54,  94,  95,  131,  134,  137,  212, 
377,  384,  525,  564,  565,  567,  568,  573,  580,  585,  616,  617 
Gonzales  v.  Williams,  Jan.,  904,  192  U.  S.  1,  48  Law  Ed.  317.  . . .128,  148, 
338,  376,  384,  475,  496,  506,  512,  527,  534,  536,  542,  544,  545,  546,  623 
Hackfeld,  H.,  & Co.,  v.  United  States,  April,  1905,  197  U.  S.  442,  49 

Law  Ed.  826 76,  82,  251,  257 

Head  Money  Cases,  Dec.,  1884,  112  U.  S.  580,  28  Law  Ed.  798. 

16,  45,  64,  153,  298 

Henderson  v.  City,  Mar.,  1876,  92  U.  S.  259,  23  Law  Ed.  543 58 

Hepner  v.  United  States,  April,  1909,  213  U.  S.  103,  53  Law  Ed.  720. 

217,  219,  220,  221,  665 

Keller  v.  United  States,  April,  1909,  213  U.  S.  138,  53  Law  Ed.  737. 

206,  207 

Lau  Ow  Bew,  Petitioner,  Nov.,  1891,  141  U.  S.  583,  35  Law  Ed.  868. 

493,  648,  649 

Lau  Ow  Bew  v.  United  States,  Mar.,  1892,  144  U.  S.  47,  36  Law  Ed. 

340 10,  14,  87,  328,  355,  360,  371,  430,  487,  494,  531,  588,  649 

Lee  Gon  Yung  v.  United  States,  May,  1902,  185  U.  S.  306,  46  Law 

Ed.  921 19,  281,  525,  537 

Lee  Lung  v.  Patterson,  May,  1902,  186  U.  S.  168,  46  Law  Ed.  1108. 

34,  357,  491,  536,  590,  591 

Lees  v.  United  States,  Dec.,  1893,  150  U.  S.  476,  37  Law  Ed.  1150. 

16,  68,  69,  217,  219,  220 


IX 


X 


Table  of  Cases. 


Lem  Moon  Sing  v.  United  States,  May,  1895,  158  U.  S.  539,  39  Law 

Ed.  1082 48,  98,  137,  146,  212,  357,  431,  491,  493,  496,  502 

Li  Sing  v.  United  States,  Mar.,  1901,  180  U.  S.  486,  45  Law  Ed.  634. 

93,  94,  97,  480,  482,  490,  502,  511,  564,  565,  573,  616 

Lim  Hop  Fong  v.  United  States,  April,  1908,  209  U.  S.  453,  52  Law 

Ed.  888 36,  521,  580,  581,  635,  637,  638,  640,  642 

New  York  v.  Milne,  Jan.  Term,  1837,  36  U.  S.  102  (11  Pet.),  9 Law 

Ed.  648 58 

Norris  v.  City  of  Boston,  Jan.  Term,  1849,  48  U.  S.  283,  12  Law 

Ed.  702  59 

Oceanic  Steamship  Navigation  Co.  v.  Stranahan,  June,  1909,  214  U. 

S.  320,  53  Law  Ed.  1013 129,  132,  142,  231,  233 

Pearson  v.  Williams,  May,  1906,  202  U.  S.  281,  50  Law  Ed.  1029. 

75,  84,  268,  286,  293,  463,  482,  511,  536 

People  of  New  York  v.  Compagnie,  Feb.,  1883,  107  U.  S.  59,  27  Law 

Ed.  383 57,  60 

Quock  Ting  v.  United  States,  May,  1891,  140  U.  S.  417,  35  Law 

Ed.  501  573 

Smith  v.  Turner,  Jan,  Term,  1849,  48  U.  S.  283,  12  Law  Ed.  702. .. . 59 

Suey  et  al.  v.  Backus,  June,  1912 385 

Tang  Tun  v.  Edsell,  Mar.,  1912,  223  U.  S.  673,  56  Law  Ed. . . . .516,  518 

Taylor  v.  United  States,  Nov.,  1907,  207  U.  S.  120,  52  Law  Ed.  130. 

79,  82,  108,  148,  164,  166,  172,  193,  195,  254,  376, 

427,  428,  429,  435,  472,  475,  507,  512,  534,  565 
Tom  Hong  v.  United  States,  Mar.,  1904,  193  U.  S.  517,  48  Law 

Ed.  772 .33,  97,  98,  101,  575,  608,  612,  652 

United  States,  re,  May,  1904,  194  U.  S.  194,  48  Law  Ed.  931 641,  644 

United  States  v.  Bitty,  Feb.,  1908,  208  U.  S.  393,  52  Law  Ed.  543 . . 184,  205 
United  States  v.  Gue  Lim,  Feb.,  1900,  176  U.  S.  459,  44  Law  Ed.  544. 

29,  34,  332,  346,  347,  366,  369,  578,  589,  591,  592 

United  States  v.  Jung  Ah  Lung,  Feb.,  1888,  124  U.  S.  621,  31  Law 

Ed.  591 28,  29,  88,  354,  480,  484,  486,  493,  531,  577,  582,  622 

United  States  v.  Ju  Toy,  May,  1905,  198  U.  S.  253,  49  Law  Ed.  1040. 

18,  99,  250,  299,  336,  338,  412,  491,  499,  513, 

528,  535,  541,  543,  544,  545,  546,  623,  678 
United  States  v.  Laws,  May,  1896,  163  U.  S.  256,  41  Law  Ed.  151. . . .67,  71 
United  States  v.  Lee  Yen  Tai,  April,  1902,  185  U.  S.  213,  46  Law 

Ed.  878 32,  49,  51,  98,  101,  634 

United  States  v.  Sing  Tuck,  April,  1904,  194  U.  S.  161,  48  Law  Ed. 

917 99,  101,  291,  412,  491,  498,  516,  535,  537,  556,  597,  618,  678 

United  States  v.  Stevenson  et  al.,  Nov.,  1909,  215  U.  S.  190,  54  Law 

Ed.  153 219 

United  States  v.  Stevenson  et  al.,  Nov.,  1909,  215  U.  S.  200,  54  Law 

Ed.  157 22,  314 

United  States  v.  Nord  Deutscher  Lloyd,  Jan.,  1912,  223  U.  S.  512, 

56  Law  Ed.  228,232,257 , 668 

United  States  ex  rel.  Turner  v.  Williams,  May,  1904,  194  U.  S.  279, 

48  Law  Ed.  979 9,  16,  18,  55,  58,  79,  139,  172,  180,  312,  338 

United  States  v.  Wong  Kim  Ark,  Mar.,  1898,  169  U.  S.  649,  42  Law 

Ed.  890 125,  378,  384,  413,  496,  501,  567 


Table  of  Cases. 


xi 


United  States  v.  Wong  You  et  al.,  Jan.,  1912,  223  U.  S.  67,  56  Law 

Ed.  278,308,  551,619,672 

Wan  Shing  v.  United  States,  May,  1891,  140  U.  S.  424,  35  Law  Ed. 

503 92,  356,  361,  493,  531,  578,  579,  634 

Wong  Wing  v.  United  States,  May,  1896,  163  U.  S.  230,  41  Law  Ed. 

140 95,  132,  212,  338,  616 

Yamataya  v.  Fisher,  April,  1903,  189  U.  S.  86,  47  Law  Ed.  721. 

16,  41,  74,  138,  174,  299,  337,  338,  491,  495, 

502,  511,  513,  514,  525,  527,  530,  537,  540 

Yick  Wo  v.  Hopkins,  May,  1886,  118  U.  S.  356,  30  Law  Ed.  220 131 

Zartarian  v.  Billings,  Jan.,  1907,  204  U.  S.  170,  51  Law  Ed.  428. 

238,  250,  310,  336,  381,  421 

UNITED  STATES  CIRCUIT  AND  DISTRICT  COURTS  AND 
CIRCUIT  COURTS  OF  APPEAL. 

Ah  Kee,  in  re  (Case  of  the  Unused  Tag),  C.  C.  D.  Cal.,  Sept.,  1884, 

21  Fed.  701 107,  662 

Ah  Kee,  in  re,  D.  C.  S.  D.  N.  Y.,  Nov.,  1884,  22  Fed.  519 474,  483,  660 

Ah  Lung,  in  re,  C.  C.  D.  Cal.,  Sept.,  1883,  18  Fed.  28 28,  29,  105 

Ah  Moy  (Case  of  the  Chinese  Wife),  C.  C.  D.  Cal.,  Sept.,  1884,  21 

Fed.  785 346,  351,  367,  589,  607 

Ah  Moy,  in  re  (Case  of  Chinese  Wife),  C.  C.  D.  Cal.,  Sept.,  1884, 

21  Fed.  808 662 

Ah  Ping,  in  re,  C.  C.  D.  Cal.,  Mar.,  1885,  23  Fed.  329 355,  360,  371 

Ah  Quan,  in  re,  C.  C.  D.  Cal.,  Aug.,  1884,  21  Fed.  182 355,  582,  589 

Ah  Sing,  in  re  (Case  of  Chinese  Cabin  Waiter),  C.  C.  D.  Cal.,  Aug., 

1882,  13  Fed.  286 86,  105,  361,  362,  474,  609 

Ah  Tai,  in  re,  D.  C.  D.  Mass.,  Nov.,  1903,  125  Fed.  795 98,  666 

Ah  Tie  et  al.,  in  re  (Case  of  Chinese  Laborers  on  Shipboard),  C.  C. 

D.  Cal.,  Aug.,  1882,  13  Fed.  291 362 

Ah  Yow,  in  re,  D.  C.  D.  Wash.,  N.  D.,  Jan.,  1894,  59  Fed.  561.  .605,  606,  652 

Ah  Yuk,  in  re,  D.  C.  D.  Minn.,  Jan.,  1893,  53  Fed.  781 634 

Aliano,  in  re,  C.  C.  S.  D.  N.  Y.,  Sept.,  1890,  43  Fed.  517 71, 178 

Ark  Foo  et  al.  v.  United  States,  C.  C.  A.  2nd  Ct.,  Feb.,  1904,  128 

Fed.  697  598 

Avakian,  ex  parte,  D.  C.  D.  Mass.,  Nov.,  1910,  188  Fed.  688. . . .281,  411,  622 
Bak  Kun  v.  United  States,  C.  C.  A.  6th  Ct.,  Mar.  1912,  195  Fed.  53 . . 650 

Botis  v.  Davies,  D.  C.  N.  D.  111.  E.  D.,  Nov.,  1909,  173  Fed.  996. .. . 

80,  188,  271,  273,  297,  461,  463,  512,  539 


Bracmadfar,  in  re,  C.  C.  S.  D.  N.  Y.,  Feb.,  1889,  37  Fed.  774 488 

Bucciarello  et  al.,  in  re,  C.  C.  S.  D.  N.  Y.,  Feb.,  1891,  45  Fed.  463. . . 63 


Buehsbaum,  in  re,  D.  C.  E.  D.  Penn.,  Dec.,  1905,  141  Fed.  221. 

338,  437,  504,  546 

Can  Pon  et  al.,  in  re,  C.  C.  A.  9th  Ct.,  Feb.,  1909,  168  Fed.  479. 

517,  617,  646 

Chain  Chio  Fong  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1904,  133 

Fed.  154 362,  585 

Chan  Tse  Cheung  v.  United  States,  D.  C.  W.  D.  Texas,  El  Paso  D., 

July,  1911,  189  Fed.  412 


358 


xii 


Table  of  Cases. 


Cheung  Him  Nin  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1904,  133 

Fed.  391 360,  585 

Cheung  Pang  v.  United  States,  C.  C.  A.  9th  Ct.,  1904,  133  Fed.  392. 

344,  579,  611 

Chew  Hing  v.  United  States,  C.  C.  A.  9th  Ct.,  1904,  133  Fed.  227 571 

Chin  A On  et  al.,  in  re,  D.  C.  D.  Cal.,  Nov.,  1883,  18  Fed.  506. 

88,  354,  486,  577,  582 


Chin  Ark  Wing,  in  re,  D.  C.  D.  Mass.,  May,  1902,  115  Fed.  412.  . . .360,  652 

Chin  Hen  Lock,  ex  parte,  D.  C.  Vt.,  Nov.,  1909,  174  Feb.  282 514 

Chin  Kee  v.  United  States,  D.  C.  W.  D.  Tex.,  May,  1912,  196  Fed.  74.  209 

Chin  Ken  et  al.  v.  United  States,  C.  C.  A.  2nd  Ct.  Nov.,  1911,  191 

Fed.  817 651,  652 

Chin  King,  ex  parte,  C.  C.  D.  Oregon,  June,  1888,  35  Fed.  354,.  . . .413,  486 


Chin  Yuen  Sing,  in  re,  C.  C.  S.  D.  N.  Y.,  Nov.,  1894,  65  Fed.  571.  .483,  502 
Chin  Yuen  Sing,  in  re,  C.  C.  S.  D.  N.  Y.,  Dee.,  1894,  65  Fed.  788. ..  . 663 

Chin  Wah,  in  re,  D.  C.  D.  Oregon,  Oct.,  1910,  182  Fed.  256 

19,  338,  662,  665,  666 


Chin  Wah  v.  Colwell,  C.  C.  A.  9th  Ct.,  May,  1911,  187  Fed.  592 666 

Chomel  v.  United  States,  Brion  v.  United  States,  C.  C.  A.  7th  Ct., 

Apr.,  1911,  192  Fed.  117 184 

Chow  Chok  v.  United  States,  C.  C.  A.  2nd  Ct.,  June,  1908,  163  Fed. 

1021  308 


Chow  Chok,  ea  parte,  C.  C.  N.  D.  N.  Y.,  May,  1908,  161  Fed.  627. . . 

158,  280,  308,  537,  619,  672 

Chow  Loy,  in  re,  C.  C.  D.  Maine,  Sept.,  1901,  110  Fed.  952 641 

Chow  Goo  Pooi,  in  re,  C.  C.  D.  Cal.,  Jan.,  1884,  25  Fed.  77,. . . .52,  616,  662 
Chow  Loy  v.  United  States,  C.  C.  A.  1st  Ct.,  Nov.,  1901,  112  Fed. 

354 639,  641,  642,  643 

Chu  King  Foon  v.  United  States,  C.  C.  A.  2nd  Ct.,  Nov.,  1911,  191 


Fed.  822  651 

Chung  Toy  Ho,  in  re,  C.  C.  Dis.  Oregon,  May,  1890,  42  Fed.  398 . . 29,  346,  589 
Chu  Pay,  in  re,  D.  C.  N.  D.  Ohio,  E.  D.,  June,  1897,  81  Fed.  826.  . . . 612 

Crawford,  ex  parte,  D.  C.  S.  D.  N.  Y.,  Oct.,  1908,  165  Fed.  830. 

297,  469,  504 

Cummings,  in  re,  C.  C.  S.  D.  N.  Y.,  Aug.,  1887,  32  Fed.  75.  .67,  483,  484,  524 
Cunard  Steamship  Company  v.  Stranahan,  C.  C.  S.  D.  N.  Y.,  Nov., 

1904,  134  Fed.  318 233,  236,  474 

Davies  v.  Manolis,  C.  C.  A.  7th  Ct.,  1910,  179  Fed.  818 

80,  186,  270,  273,  461,  512,  539,  546 

Day,  in  re,  C.  C.  S.  D.  N.  Y.,  May,  1886,  27  Fed.  678 63,  175,  483 

De  Briuler  v.  Gallo,  C.  C.  A.  9th  Ct.,  Feb.,  1911,  184  Fed.  566 535 

Dietze,  in  re,  D.  C.  S.  D.  N.  Y.,  Oct.,  1889,  40  Fed.  324 483,  488 

Di  Simone,  in  re,  D.  C.  E.  D.  La.,  Mar.,  1901,  108  Fed.  942 

382,  503,  512,  517,  530,  603 


Durand,  ex  parte,  D.  C.  D.  Oregon,  Mar.,  1908,  160  Fed.  558, 

80,  184,  297,  455,  456 

Edsell  v.  Mark,  C.  C.  A.  9th  Ct.,  May,  1910,  179  Fed.  292 514,  537,  601 

Ellis,  in  re,  C.  C.  S.  D.  N.  Y.,  June,  1903,  124  Fed.  657 72,80,  188 

Eng  Choy  v.  United  States,  C.  C.  A.  8th  Ct.,  Jan.,  1910,  175  Fed.  566.  650 

Feinknopf,  in  re,  D.  C.  E.  D.  N.  Y.,  Sept.,  1891,  47  Fed.  447 74,489 


Table  of  Cases. 


xiii 


Fong  Gum  Tong  v.  United  States,  C.  C.  A.  7th  Ct.,  Oct.  1911,  192 

Fed.  320  

Fong  Mey  Yuk  v.  United  States,  C.  C.  A.  9th  Ct.,  Feb.,  1902,  113 

Fed.  898 73,  565,  628,  631,  632, 

Fong  Yim  et  al.,  ex  parte,  D.  C.  S.  D.  N.  Y.,  Jan.  1905,  134  Fed.  938. 

Frick  v.  Lewis,  C.  C.  A.  6th  Ct.,  Feb.,  1912,  195  Fed.  693 

180,  209,  270,  308,  453,  464,  512,  670, 

Frolic,  The,  D.  C.  D.  R.  I.,  Dec.,  1906,  148  Fed.  921, 

Frolic,  The,  D.  C.  D.  R.  I.,  Nov.,  1906,  148  Fed.  918 

Gayde,  in  re,  C.  C.  S.  D.  N.  Y.,  Dec.,  1901,  113  Fed.  588 336, 

Gee  Cue  Beng  v.  United  States,  C.  C.  A.  5th  Ct.,  Feb.,  1911,  184  Fed. 

383 569,  598, 

Gee  Fook  Sing  v.  United  States,  C.  C.  A 9th  Ct.,  Jan.,  1892,  49  Fed. 

146 360,  413,  486,  497, 

Gee  Hop,  in  re,  D.  C.  N.  D.  Cal.,  Dec.,  1895,  71  Fed.  274 384,  568, 

George,  ex  parte,  D.  C.  N.  D.  Ala.,  July,  1910,  180  Fed.  785 

Gerard  v.  United  States,  C.  C.  A.  9th  Ct.,  Mar.,  1908,  159  Fed.  421. . 
Giovanna  et  al.,  in  re,  D.  C.  S.  D.  N.  Y.,  Mar.,  1899,  93  Fed.  659, 

413,  502, 

Gong  Nom  Wood  v.  United  States,  C.  C.  A.  2nd  Ct.,  Nov.,  1911,  191 


Fed.  830 618,  650, 

Gouyet,  ex  parte,  D.  C.  Montana,  June,  1909,  175  Fed.  230 

Guayde,  in  re,  C.  C.  S.  D.  N.  Y.,  Dec.,  1901,  112  Fed.  415 185,  205, 

Gut  Lun,  in  re,  D.  C.  N.  D.  Col.,  Nov.,  1897,  83  Fed.  141 630, 

Hackfeld  & Company  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1905, 
141  Fed.  9 253, 


Hamaguchi,  ex  parte,  C.  C.  D.  Oregon,  April,  1908,  161  Fed.  185. . . . 

282,  307,  540,  626, 

Haw  Moy  v.  North,  C.  C.  A.  9th  Ct.,  Nov.,  1910,  183  Fed.  89 

Hirsch  Berjanski,  in  re,  D.  C.  E.  D.  N.  Y.,  Sept.,  1891,  47  Fed.  445. . 

Hoffman,  in  re,  C.  C.  A.  2nd  Ct.,  May,  1910,  179  Fed.  839 

185,  274,  451,  469, 

Ho  King,  in  re,  D.  C.  D.  Oregon,  Jan.,  1883,  14  Fed.  724 

88,  355,  582,  606, 

Ho  Ngen  Jung  v.  United  States,  D.  C.  W.  D.  Texas,  El  Paso  D.,  April 

1907,  153  Fed.  232,  

Hong  You  et  al.  v.  United  States,  C.  C.  A.  2nd  Ct.,  June,  1908,  164 

Fed.  330 

Hong  Wing  v.  United  States,  C.  C.  A.  6th  Ct.,  Jan.,  1906,  142  Fed. 


128 93,  101, 

Hopkins  v.  Fachant,  C.  C.  A.  9th  Ct.,  May,  1904,  130  Fed.  839 .... 

185,  386,  411,  508, 

Howard,  in  re,  C.  C.  S.  D.  N.  Y.,  Oct.,  1894,  63  Fed.  263 188, 

International  Mercantile  Marine  Co.  v.  United  States,  C.  C.  A.  2nd 

Ct.  Jan.,  1912,  192  Fed.  887 

Jack  Sen  et  al.,  in  re,  C.  C.  N.  D.  Cal.,  Oct.,  1888,  36  Fed.  441 

Jam,  in  re,  D.  C.  S.  D.  N.  Y.,  May,  1900,  101  Fed.  989  474,  610, 

Jem  Yuen,  in  re,  D.  C.  D.  Mass.,  July,  1910,  188  Fed.  350 


516,  518,  618,  662,  663, 


651 

637 

502 

677 

110 

110 

491 

644 

572 

601 

179 

107 

531 

651 

68 

214 

637 

645 

669 

540 

74 

504 

609 

571 

650 

102 

513 

487 

463 

361 

660 

665 


xiv 


Table  of  Cases. 


Jew  Sing  v.  United  States,  D.  C.  D.  Texas,  El  Paso  Div.,  Nov.,  1899, 

97  Fed.  582 345, 

Jew  Wong  Loy,  in  re,  D.  C.  N.  D.  Cal.,  Dec.,  1898,  91  Fed.  240. ...  95, 
Jong  Jim  Hong,  ex  parte,  C.  C.  N.  D.  N.  Y.,  Dec.,  1907,  157  Fed. 

447 514,  535, 

Kaprielian,  ex  parte,  D.  C.  D.  Mass.,  Nov.,  1910,  188  Fed.  694 

386,  404,  509,  520, 

Kleibs,  in  re,  C.  C.  S.  D.  N.  Y.,  Mar.,  1904,  128  Fed.  656 379, 

Koerner,  ex  parte,  C.  C.  E.  D.  Wash.,  Dec.,  1909,  176  Fed.  478 

178,  458, 

Kornmehl,  in  re,  C.  C.  S.  D.  N.  Y.,  May,  1898,  87  Fed.  314 

240,  283,  511, 

Kum  Sue  v.  United  States,  C.  C.  A.  2nd  Ct,  May,  1910,  179  Fed. 

370 569, 

Lai  Moy  v.  United  States,  C.  C.  A.  9th  Ct.,  Feb.,  1895,  66  Fed.  955. . . 

97,  357,  606, 

Lair,  ex  parte,  D.  C.  D.  Kan.,  1st  Div.,  March,  1910,  177  Fed.  789. . 
Lam  Jung  Sing,  in  re,  D.  C.  W.  D.  N.  Y.,  Feb.,  1907,  150  Fed.  608. . 

569,  631, 

Lang  et  al.  v.  United  States,  C.  C.  A.  7th  Ct.,  Oct.,  1904,  133  Fed. 

201 84, 

Lavin  v.  Lefevre  et  al.,  C.  C.  A.  9th  Ct.,  Nov.,  1903,  125  Fed.  693 . . . 

465,  473,  512, 

Law  Chin  Woon  v.  United  States,  C.  C.  A.  9th  Ct.,  June,  1906,  147 

Fed.  227 

Lea,  in  re,  D.  C.  D.  Oregon,  Nov.,  1903,  126  Fed.  234 

79,  177,  461,  512,  539, 

Lee  Ah  Yin  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1902,  116  Fed. 

614 368,  571,  605, 

Lee  Gon  Yung,  in  re,  C.  C.  N.  D.  Cal.,  Nov.,  1901,  111  Fed.  998. . .537, 
Lee  Ho  How,  in  re,  D.  C.  N.  D.  Cal.,  April,  1900,  101  Fed.  115. . . . 

346,  521,  580,  634, 

Lee  Joe  Yen  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1906,  148  Fed. 

682 

Lee  Kan  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1894,  62  Fed.  914. . .97, 
Lee  Kow,  ex  parte,  C.  C.  N.  D.  N.  Y.,  May,  1908,  161  Fed.  592,. . . .514, 

Lee  Lung,  in  re,  D.  C.  D.  Oregon,  May,  1900,  102  Fed.  132 

Lee  Sher  Wing,  in  re,  D.  C.  N.  D.  Cal.,  Oct.,  1908,  164  Fed.  506,. . .275, 
Lee  Sing  Far  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1899,  94  Fed. 

836 413,  571, 

Lee  Won  Jeong  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1906,  145 

Fed.  512 

Lee  Yee  Sing,  in  re,  D.  C.  D.  Wash.,  Feb.,  1898,  85  Fed.  635 

369,  535,  589, 

Lee  Yue  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1904,  133  Fed.  45. . 
Lee  Yuen  Sue  v.  United  States,  C.  C.  A.  9th  Ct.,  1906,  146  Fed.  670. . 

602,  619, 

Leo  Horn  Bow,  in  re,  D.  C.  D.  Wash.,  N.  D.,  Aug.,  1891,  47  Fed.  302. . 
Leong  Yick  Dew,  in  re,  C.  C.  D.  Cal.,  Feb.,  1884,  19  Fed.  490.  .88,  354, 


580 

572 

559 

622 

483 

504 

573 

651 

613 

210 

640 

297 

671 

619 

597 

607 

660 

641 

598 

612 

523 

536 

619 

573 

636 

610 

573 

639 

608 

582 


Table  of  Cases. 


xv 


Leo  Lung  On  v.  United  States,  C.  C.  A.  8th  Ct.,  Feb.,  1908,  159 

Fed.  125 645 

Leong  Jun  v.  United  States,  C.  C.  A.  2nd  Ct.,  June,  1909,  171  Fed. 

413 482,  508,  635 

Leong  Youk  Tong,  in  re,  C.  C.  D.  Oregon,  Dec.,  1898,  90  Fed.  648. . 

491,  502,  617 

Leung,  in  re,  C.  C.  A.  2nd  Ct.,  April,  1898,  86  Fed.  303 606 

Lew  Jim  v.  United  States,  C.  C.  A.  9th  Ct.,  Feb.,  1895,  66  Fed.  953. . 

97,  357,  605,  613 

Lew  Moy  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1908,  164  Fed.  322 . . 645 

Lew  Quen  Wo  v.  United  States,  C.  C.  A.  9th  Ct.,  Feb.,  1911,  184 

Fed.  685 286,  463,  521,  579,  580,  601,  607 

Lewis  v.  Frick,  C.  C.  E.  D.  Mich.,  S.  D.,  April,  1911,  189  Fed.  146. . 

180,  209,  270,  452,  458,  464,  512,  676 

Li  Dick,  ex  parte,  C.  C.  N.  D.  N.  Y.,  Mar.,  1910,  176  Fed.  998. .. . 

275,  307,  551,  619 

Li  Dick,  ex  parte,  D.  C.  N.  D.  N.  Y.,  Dec.,  1909,  174  Fed.  674 

15,  275,  619,  673 

Lifieri  et  ah,  in  re,  D.  C.  S.  D.  N.  Y.,  July,  1892,  52  Fed.  293. . . .67,  71,  74 

Li  Foon,  in  re,  C.  C.  S.  D.  N.  Y.,  Feb.,  1897,  80  Fed.  881 482,  511,  589 

Lim  Sam  v.  United  States,  D.  C.  W.  D.  Texas,  El  Paso  Div.,  July, 

1911,  189  Fed.  534 569,  570,  598 

Lintner,  in  re,  D.  C.  S.  D.  Cal.,  Aug.,  1893,  57  Fed.  587 630,  632 

Long  Lock,  ex  parte,  D.  C.  N.  D.  N.  Y.,  Oct.  1909,  173  Fed.  208. . . . 

508,  514,  523,  536,  603 

Look  Tin  Sin,  in  re,  C.  C.  D.  Cal.,  Sept.,  1884,  21  Fed.  905 87,413 

Looe  Shee  v.  North,  C.  C.  A.  9th  Ct.,  May,  1909,  170  Fed.  566 

184,  185,  213,  274,  297,  368,  383,  384,  455,  456,  551,  592,  619,  622 

Louie  You,  in  re,  D.  C.  Oregon,  Sept.,  1899,  97  Fed.  580 360,572 

Loung  June,  ex  parte,  D.  C.  N.  D.  N.  Y.,  Mar.,  1908,  160  Fed.  251. . 

346,  482,  601,  635,  636 

Low  Foon  Yin  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1906,  145  Fed. 

791 94,  565,  573,  597,  616,  619 

Low  Yam  Chow,  in  re  (Case  of  the  Chinese  Merchant),  C.  C.  Dis.  Cal., 

Sept.,  1882,  13  Fed.  605 87,  355,  582 

Lui  Lum  y.  United  States,  C.  C.  A.  3rd  Ct.,  Jan.,  1909,  166  Fed.  106.  673 

Lum  Lin  Ying,  in  re,  D.  C.  D.  Oregon,  Feb.,  1894,  59  Fed.  682 .... 

368,  487,  589,  601 

Lum  Poy,  in  re,  C.  C.  D.  Montana,  Mar.,  1904,  128  Fed.  974 666 

Lung  Foot,  ex  parte,  D.  C.  N.  D.  N.  Y.,  Nov.,  1909,  174  Fed.  70. . 

511,  514,  603,  635 

Lung  Wing  Wun,  ex  parte,  D.  C.  W.  D.  Wash,  N.  D.,  May,  1908,  161 

Fed.  211 18,  338,  502,  508,  535,  581,  599,  602,  631,  636 

Maiola,  in  re,  C.  C.  S.  D.  N.  Y.,  Feb.,  1895,  67  Fed.  114 70,  429,  503 

Mar  Bing  Guey  v.  United  States,  D.  C.  W.  D.  Texas,  Nov.,  1899,  97 

Fed.  576 286,  344,  463,  511,  578,  579,  606,  613 

Mar  Poy  v.  United  States,  D.  C.  W.  D.  Texas,  El  Paso  Div.,  July, 

1911,  189  Fed.  288 570,  650 

Mar  Sing  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1905,  137  Fed.  875. 

605,  613,  650 


xvi 


Table  of  Cases. 


Martorelli,  in  re,  C.  C.  S.  D.  N.  Y.,  Oct.,  1894,  63  Fed.  437.  .67,  70,  429,  503 
Matsumura  v.  Higgins,  C.  C.  A.  9th  Ct.,  May,  1911,  187  Fed.  601. . 

273,  463,  464 

Michele,  ex  parte,  D.  C.  E.  D.  Wash.,  S.  D.,  April,  1911,  188  Fed.  449.  269 

Minnesota,  St.  Paul  Ry.  Co.  v.  Milner,  C.  C.  W.  D.  Mich.,  N.  D.,  July, 


1893,  57  Fed.  276 61,256 

Moffitt  v.  United  States,  C.  C.  A.  9th  Ct.,  Feb.,  1904,  128  Fed.  375. . . 429 


Moller  v.  United  States,  C.  C.  A.  5th  Ct.,  June,  1893,  57  Fed.  490. .. 

189,  223,  665 

Moncan,  in  re,  C.  C.  D.  Oregon,  Oct.,  1882,  14  Fed.  44 

110,  361,  362,  474,  609 

Monaco,  in  re,  C.  C.  S.  D.  N.  Y.,  1898,  86  Fed.  117 516 

Moses,  in  re,  C.  C.  S.  D.  N.  Y.,  Dec.,  1897,  83  Fed.  995 

212,  379,  381,  382,  491,  502 

Moy  Quong  Shing,  et  ah,  in  re,  D.  C.  D.  Vt.,  Oct.,  1903,  125  Fed.  641. 

281,  511,  535 

Moy  Suey  v.  United  States,  C.  C.  A.  7th  Ct.,  Aug.,  1906,  147  Fed. 

697 539,  549,  569,  584,  596 

Murnane  et  ah,  in  re,  C.  C.  S.  D.  N.  Y.,  April,  1889,  39  Fed.  99 63 

Neuwirth,  in  re,  C.  C.  S.  D.  N.  Y.,  April,  1903,  123  Fed.  347 237 

Ng  Quong  Ming,  ex  parte,  D.  C.  S.  D.  N.  Y.,  1905,  135  Fed.  378. . . 

28,  93,  281,  357 

Nicola,  in  re,  C.  C.  A.  2nd  Ct.,  Jan.,  1911,  184  Fed.  322 386,  408,  509 

Niven  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1909,  169  Fed.  782.  .230,  254 

Ny  Look,  in  re,  C.  C.  S.  D.  N.  Y.,  May,  1893,  56  Fed.  81 95,  634 

Ong  Lung,  in  re,  C.  C.  S.  D.  N.  Y.,  Oct.,  1903,  125  Fed.  813 662 

Ong  Lung,  in  re,  C.  C.  S.  D.  N.  Y.,  Oct.,  1903,  125  Fed.  814 33,90 

Ota,  in  re,  D.  C.  N.  D.  Cal.,  Sept.,  1899,  96  Fed.  487 70,  430,  503,  531 

Ow  Guen,  ex  parte,  D.  C.  D.  Vt.,  June,  1906,  143  Fed.  926 352,  517 

Ow  Yang  Dean  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1906,  145  Fed. 

801  613 

Palagano,  in  re,  C.  C.  S.  D.  N.  Y.,  April,  1889,  38  Fed.  580 19,  63,  484 

Pang  Sho  Yin  v.  United  States,  C.  C.  A.  6th  Ct.,  June,  1907,  154  Fed. 

660  570 

Panzara  et  ah,  in  re,  D.  C.  E.  D.  N.  Y.,  June,  1892,  51  Fed.  275. . . . 

70,  429,  430,  487,  503 

Pearson  v.  Williams,  C.  C.  A.  2nd  Ct.,  Feb.,  1905,  136  Fed.  734.  .. 

273,  463,  511,  540 

Petterson,  ex  parte,  D.  C.  D.  Minn.,  4th  Div.,  Nov.,  1908,  166  Fed. 

536 185,  469,  471,  504,  519,  558 


Pouliot  et  ah,  ex  parte,  D.  C.  E.  D.  Wash.,  April,  1912,  196  Fed. 

437 270,  453 

Prentis  v.  Cosmas,  C.  C.  A.  7th  Ct.,  Jan.,  1912,  196  Fed.  372 171 

Prentis  v.  Di  Giacomo,  C.  C.  A.  7th  Ct.,  July,  1911,  192  Fed.  467 540 

Prentis  v.  Stathakos,  C.  C.  A.  7th  Ct.,  July,  1911,  192  Fed.  469.  . . .460,  540 

Quong  Sue  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1902,  116  Fed. 

316  573,  642 

Redfern  v.  Halpert,  C.  C.  A.  5th  Ct.,  Mar.,  1911,  186  Fed.  150 


72,  185,  272,  464,  468,  504,  539 

Regan  v.  United  States,  C.  C.  A.  2nd  Ct.,  Nov.,  1910,  183  Fed.  293. . . 221 


Table  of  Cases. 


xvii 


Rodgers  v.  United  States  ex  rel.  Buchsbaum,  C.  C.  A.  3rd  Ct.,  Feb., 

1907,  152  Fed.  346 79,  328,  338,  437,  443,  448,  504, 

Rodgers  v.  United  States  ex  rel.  Cachigan,  C.  C.  A.  3rd  Ct.,  Nov., 

1907,  157  Fed.  381 237, 

Rosenberg  v.  Union  Iron  Works,  D.  C.  N.  D.  Cal.,  June,  1901,  109 

Fed.  844 69, 

Russomanno,  in  re,  C.  C.  S.  D.  N.  Y.,  Jan.,  1904,  128  Fed.  528 

Rustigian,  in  re,  C.  C.  D.  R.  I.,  Dec.,  1908,  165  Fed.  980.  .386,  387,  404, 

Saraceno,  ex  parte,  C.  C.  S.  D.  N.  Y.,  Nov.,  1910,  182  Fed.  955 

179,  180,  288,  458,  519, 

Shong  Toon,  in  re,  D.  C.  D.  Cal.,  Aug.,  1884,  21  Fed.  386 

Sibray  v.  United  States  ex  rel.  Kupples,  Feb.,  1911,  C.  C.  A.  3rd 

Ct.,  185  Fed.  401 

Sims  et  al.  v.  United  States,  C.  C.  A.  9th  Ct.,  Feb.,  1903,  121  Fed.  515 

Sing,  ex  parte,  C.  C.  N.  D.  N.  Y.,  July,  1897,  82  Fed.  22 

Sing  Lee,  in  re,  D.  C.  W.  D.  Mich.,  Feb.,  1893,  54  Fed.  334 94, 

Siniscalchi  v.  Thomas,  C.  C.  A.  6th  Ct.,  Feb.,  1912,  195  Fed.  701.  . . 
Sire  v.  Berkshire  et  al.,  D.  C.  W.  D.  Texas,  Austin  D.,  Mar.,  1911,  185 

Fed.  967 454,  455,  540,  616,  624, 

Stancampiano,  ex  parte,  C.  C.  S.  D.  N.  Y.,  April,  1908,  161  Fed.  164. . 

286,  482,  491,  502, 

Stratton  v.  Oceanic  Steamship  Company,  C.  C.  A.  9th  Ct.,  Oct.,  1905, 

140  Fed.  829 160, 

Tang  Tun,  in  re,  D.  C.  W.  D.  Wash.  N.  D.,  May,  1908,  161  Fed.  618. . 

Tang  Tun  et  ux.,  C.  C.  A.  9th  Ct.,  Feb.,  1909,  168  Fed.  488  

Taylor  v.  United  States,  C.  C.  A.  2nd  Ct.,  Jan.,  1907,  152  Fed.  1.  . . . 

79,  437,  472, 

Tom  Hon,  in  re,  D.  C.  N.  D.  Cal.,  Sept.,  1906,  149  Fed.  842 

345,  521,  580, 

Tom  Wah  v.  United  States,  D.  C.  N.  D.  N.  Y.,  March,  1908,  160  Fed. 

207  

Tom  Wah  v.  United  States,  C.  C.  A.  2nd  Ct.,  June,  1908,  163  Fed. 

1008 616, 

Tong  Ah  Chee,  in  re,  D.  C.  D.  Cal.,  Nov.,  1883,  23  Fed.  441 

Toy  Tong  v.  United  States,  C.  C.  A.  3rd  Ct.,  June,  1906,  146  Fed. 

343 283,  618,  629,  631,  639, 

Tung  Yeong,  in  re,  D.  C.  D.  Cal.,  Feb.,  1884,  19  Fed.  184 88,  361, 

Tsoi  Sim  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1902,  116  Fed.  920. . 

72,  367, 

Tsoi  Yii  v.  United  States,  C.  C.  A.  9th  Ct.,  April,  1904,  129  Fed.  585. 

Tsu  Tse  Mee,  in  re,  D.  C.  N.  D.  Cal.,  May,  1897,  81  Fed.  562 616, 

United  States  v.  Ah  Chong,  C.  C.  A.  9th  Ct.,  May,  1904,  130  Fed. 

885 343, 

United  States  v.  Ah  Fawn,  D.  C.  S.  D.  Cal.,  Sept.,  1893,  57  Fed.  591 . . 
United  States  v.  Ah  Fook,  C.  C.  A.  9th  Ct.,  Nov.,  1910,  183  Fed.  33 . . 

474,  610, 

United  States  v.  Ah  Poing,  D.  C.  D.  Oregon,  Sept.,  1895,  69  Fed.  972. 
United  States  v.  Ah  Sou,  C.  C.  A.  9th  Ct.,  May,  1905,  138  Fed.  775. . 
359,  368, 


i 

516 

512 

218 

271 

509 

, 539 

355 

625 

109 

597 

,565 

464 

625 

512 

281 

516 

535 

504 

581 

631 

619 

358 

640 

486 

384 

644 

636 

600 

605 

661 

364 

607 


xviii 


Table  of  Cases. 


United  States  v.  Ah  Toy,  D.  C.  D.  Wash.,  N.  D.,  Aug.,  1891,  47  Fed. 


305. 


United  States  v.  Arteago  et  al.,  C.  C.  A.  5th  Ct.  May,  1897,  68  Fed. 

883  538 

United  States  v.  Atlantic  Transport  Co.,  C.  A.  A.  2nd  Ct.,  May,  1911, 

188  Fed.  42 165,  473 

United  States  v.  Aultman,  D.  C.  N.  D.  Ohio,  E.  D.,  Feb.,  1905,  143 

Fed.  922 79,437,449,504 

United  States  v.  Baltic  Mills  Co.,  C.  C.  A,  2nd  Ct.,  May,  1903,  124 

Fed.  38  190,  223,  225 

United  States  v.  Banister,  C.  C.  D.  Vt.,  Oct.,  1895,  70  Fed.  44 69,220 

United  States  v.  Bitty,  C.  C.  S.  D.  N.  Y.,  Sept.,  1907,  155  Fed. 

938  183,  205 

United  States  v.  Borneman,  D.  C.  D.  N.  J.,  Mar.,  1890,  41  Fed.  751. . 222 

United  States  v.  Bromiley,  D.  C.  E.  D.  Penn.,  Nov.,  1893,  58  Fed.  554.  68 

United  States  v.  Burke,  C.  C.  S.  D.  Ala.,  Dec.,  1899,  99  Fed.  895 

70,  72,  99,  188,  229,  429,  472,  474,  530 

United  States  v.  Capella,  D.  C.  N.  D.  Cal.,  Mar.,  1909,  169  Fed. 

890 210,  230 

United  States  v.  Chew  Cheong,  D.  C.  N.  D.  Cal.,  April,  1894,  61  Fed. 

200 15,  96 

United  States  v.  Chin  Chong  Pong,  D.  C.  S.  D.  N.  Yv  Nov.,  1911,  192 

Fed.  722 651 

United  States  v.  Chin  Fee,  D.  C.  D.  Vt.,  May,  1899,  94  Fed.  828 .... 

99,  360,  539 

United  States  v.  Chin  Ken,  D.  C.  N.  D.  N.  Y.,  Nov.,  1910,  183  Fed. 

332 573,  597 

United  States  v.  Chin  Len,  C.  C.  A.  2nd  Ct.,  April,  1911,  187  Fed.  544  522 

United  States  v.  Chin  Quong  Look,  D.  C.  D.  Wash.  N.  D.,  Aug.,  1892, 

52  Fed.  203 355 

United  States  v.  Chin  Sing,  D.  C.  D.  Oregon,  April,  1907,  153  Fed. 

590 348,  585,  600 

United  States  v.  Chin  Tong,  C.  C.  A.  5th  Ct.,  Dec.,  1911,  192  Fed.  485  633 

United  States  v.  Chong  Sam,  D.  C.  E.  D.,  Mich.,  Nov.,  1891,  47  Fed. 

878 93,  601,  680 

United  States  v.  Chu  Chee,  D.  C.  D.  Oregon,  May,  1898,  87  Fed.  312. . 592 

United  States  v.  Chu  Chee,  C.  C.  A.  9th  Ct.,  Mar.,  1899,  93  Fed.  797. . 

86,  89,  92,  93,  330,  577,  578,  592,  602,  608 

United  States  v.  Chu  Hung,  D.  C.  D.  S.  C.,  April,  1910,  179  Fed.  564. . 569 

United  States  v.  Chu  King  Foon,  D.  C.  N.  D.  N.  Y.,  July,  1910,  179 

Fed.  995 650,  652 

United  States  v.  Chum  Shang  Yuen,  D.  C.  S.  D.  Cal.,  Sept.,  1893,  57 

Fed.  588 630,  632 

United  States  v.  Chung  Ki  Foon,  D.  C.  N.  D.  Cal.,  Oct.,  1897,  83  Fed. 

143 364,  606 

United  States  v.  Chun  Hoy,  C.  C.  A.  9th  Ct.,  Oct.,  1901,  111  Fed.  899.  573 

United  States  v.  Chung  Shee,  C.  C.  A.  9th  Ct.,  Oct.,  1896,  76  Fed.  951  508 

United  States  v.  Chung  Fung  Sun,  D.  C.  N.  D.  N.  Y.,  Oct.,  1894,  63 

Fed.  261 651 

United  States  v.  Cohen,  C.  C.  A.,  2nd  Ct.,  June,  1910,  179  Fed.  834. . 400 


Table  of  Cases. 


XIX 


United  States  v.  Craig,  C.  C.  E.  D.  Mich.,  Oct.,  1886,  28  Fed.  795 

68,  69,  222 

United  States  v.  Crouch,  C.  C.  E.  D.  N.  Y.,  April,  1911,  185  Fed. 

907 85,  370,  474,  610 

United  States  v.  Don  On,  C.  C.  N.  D.  N.  Y.,  Nov.,  1891,  49  Fed.  569.  . 

359,  361,  652 

United  States  v.  Douglas,  C.  C.  D.  Mass.,  Aug.,  1883,  17  Fed.  634.  . .105,  610 
United  States  v.  Durie,  D.  C.  E.  D.  Penn.,  May,  1909,  170  Fed.  624. . 106 

United  States  v.  Edgar,  C.  C.  A.  8th  Ct.,  Oct.,  1891,  48  Fed.  91. . . .189,  222 
United  States  ex  rel.  Boulbol  v.  Fielding,  D.  C.  E.  D.  N.  Y.,  Dec., 

1909,  175  Fed.  290 246 

United  States  v.  Foh  Chung,  D.  C.  S.  D.  Ga.,  N.  E.  D.,  Aug.,  1904,  132 

Fed.  109 666 

United  States  v.  Foo  Duck,  C.  C.  A.  9th  Ct.,  Sept.,  1909,  172  Fed. 

856 346,  369,  370 

United  States  v.  Foo  Duck,  D.  C.  D.  Montana,  July,  1908,  164  Fed. 

440  370 

United  States  v.  Foong  King,  D.  C.  S.  D.  Ga.,  N.  E.  D.,  June,  1904, 

132  Fed.  107 344,  610 

United  States  v.  Four  Hundred  and  Twenty  Dollars,  D.  C.  S.  D.  Ala., 

June,  1908,  162  Fed.  803 249 

United  States  v.  Gay,  C.  C.  A.  7th  Ct.,  June,  1899,  95  Fed.  226 68, 187 

United  States  v.  Gay,  C.  C.  D.  Ind.,  April,  1897,  80  Fed.  254 76,  223 

United  States  v.  Gee  Lee,  C.  C.  A.  9th  Ct.,  April,  1892,  50  Fed. 


271. 


United  States  v.  Gin  Fung,  C.  C.  A.  9th  Ct.,  Feb.,  1900,  100  Fed. 


389. 


United  States  v.  Giuliani,  D.  C.  D.  Del.,  May,  1906,  147  Fed.  594. . . . 213 

United  States  v.  Graham,  C.  C.  E.  D.  N.  Y.,  Nov.,  1908,  164  Fed. 

654 106,  474 

United  States  v.  Great  Falls  & C.  Rwy.  Co.,  C.  C.  D.  Montana,  Nov., 

1892,  53  Fed.  77 222 

United  States  v.  Gue  Lim,  D.  C.  D.  Wash.,  N.  D.,  Oct.,  1897,  83  Fed. 

136  589 

United  States  v.  Hamburg  American  Line,  C.  C.  A.  2nd  Ct.,  Jan., 

1908,  159  Fed.  104 264 

United  States  v.  Hemet,  D.  C.  D.  Oregon,  Sept.,  1907,  156  Fed.  285. . 

257,  282,  561 

United  States  v.  Hills,  D.  C.  W.  D.  N.  Y.,  July,  1903,  124  Fed.  831. . 636 

United  States  v.  Horn  Hing,  D.  C.  N.  D.  N.  Y.,  Jan.,  1892,  48  Fed. 


United  States  v.  Hook,  D.  C.  D.  Md.,  Nov.,  1908,  166  Fed.  1007 

272,  464,  466,  469,  504 

United  States  v.  Hoy  Way,  D.  C.  E.  D.  Penn.,  Sept.,  1907,  156  Fed. 

247 565,  569 

United  States  v.  Hung  Chang,  C.  C.  A.  6th  Ct.,  Dec.,  1904,  134  Fed. 

19 597,  598,  616,  635,  644,  645 

United  States  v.  Hung  Chang,  C.  C.  A.  6th  Ct.,  May,  1904,  130  Fed. 

439 641,  644 


XX 


Table  of  Cases. 


United  States  ex  rel.  Perelman  v.  Int.  Mercantile  Marine  Co.,  C.  C. 

A.  3rd  Ct.,  Mar.,  1912,  194  Fed.  408 536 

United  States  v.  International  Mercantile  Marine  Co.,  C.  C.  S.  D.  N. 

Y.,  May,  1911,  186  Fed.  669 272,  463 

United  States  v.  International  Mercantile  Marine  Co.,  C.  C.  A.  2nd 

Ct.,  June,  1909,  171  Fed.  841 166 

United  States  v.  Jamieson,  C.  C.  S.  D.  N.  Y.,  Feb.,  1911,  185  Fed. 

165 106,  474,  609,  610 

United  States  v.  Jhu  Why,  D.  C.  N.  D Ga.,  Jan.,  1910,  175  Fed. 

630 570,  651 

United  States  v.  Jim,  D.  C.  D.  Wash,  N.  D.,  Aug.,  1891,  47  Fed.  431. . 

93,  639,  680 

United  States  v.  Joe  Dick,  D.  C.  E.  D.  Pa.,  Feb.  1905,  134  Fed.  988, 

369 

United  States  v.  Johnson,  C.  C.  S.  D.  N.  Y.,  1881,  7 Fed.  453 

205,  206 


United  States  v.  Jue  Wy,  D.  C.  D.  Vt.,  April,  1900,  103  Fed.  795,  . . 599 

United  States  v.  Jung  Jow  Tow,  D.  C.  D.  Oregon,  July,  1901,  110 

Fed.  154,  581 

United  States  v.  Kol  Lee,  D.  C.  S.  D.  Ga.,  N.  E.  D.,  June,  1904,  132 

Fed.  136,  609 


United  States  v.  Krsteff,  D.  C.  S.  D.  111.,  Jan.,  1911,  185  Fed.  201, 

206,  208 

United  States  v.  Lair,  C.  C.  A.  8th  Ct.,  Mar.,  1912,  195  Fed.  47.  . . . 

'. 206,  210,  652 

United  States  v.  Lao  Sun  Ho,  D.  C.  N.  D.  Cal.,  Feb.,  1898,  85  Fed. 

422 463,  600 

United  States  v.  Lavoie,  D.  C.  W.  D.  Wash.  W.  D.,  Nov.,  1910,  182 

Fed.  943,  210,  211 

United  States  v.  Lee  Hoy,  D.  C.  D.  Wash.  N.  D.,  Dec.  1891,  48  Fed. 

825, 93,  355,  588 

United  States  v.  Lee  Huen  and  14  other  cases,  D.  C.  N.  D.  N.  Y.,  Oct., 

1902,  118  Fed.  442, 565,  572,  573,  596,  597,  635 

United  States  v.  Lee  Kee  et  al.,  C.  C.  A.  9th  Ct.,  May,  1902,  116  Fed. 

612,  680,  681 

United  States  v.  Lee  Lip  et  ah,  D.  C.  N.  D.  N.  Y.,  Mar.,  1900,  100 

Fed.  842,  632,  634 

United  States  v.  Lee  Seick,  C.  C.  A.  9th  Ct.,  Feb.,  1900,  100  Fed. 

398,  569,  584,  645 

United  States  v.  Lee  Wing  and  7 other  cases,  D.  C.  D.  Oregon,  Mar., 

1905,  136  Fed.  701, 570,  575,  584,  598 

United  States  v.  Lee  Yung,  D.  C.  S.  D.  Cal.,  Oct.,  1894,  63  Fed.  520, 

359 

United  States  v.  Leo  Won  Tong,  D.  C.  E.  D.  Mo.  E.  D.,  Sept.,  1904, 

132  Fed.  190,  360,  585 

United  States  v.  Leu  Jim,  D.  C.  S.  D.  N.  Y.,  Nov.,  1911,  192  Fed.  580  651 

United  States  v.  Leung  Sam  and  two  other  cases,  D.  C.  W.  D.  N.  Y., 

Mar.,  1902,  114  Fed.  702  548,  571,  573,  651 

United  States  v.  Leung  Shue  et  ah,  D.  C.  N.  D.  N.  Y.,  Dec.,  1903, 

126  Fed.  423,  597,  631 


Table  of  Cases. 


xxi 


United  States  v.  Lim  Gew,  D.  C.  N.  D.  Cal.,  Dec.,  1910,  192  Fed.  644 

361,  511 

United  States  v.  Lipkis,  D.  C.  S.  D.  N.  Y.,  June,  1893,  56  Fed.  427,  . . 653 

United  States  v.  Long  Hop,  D.  C.  S.  D.  Ala.,  Feb.,  1892,  55  Fed.  58. 

93,  489,  602,  631,  633 

United  States  v.  Loo  Way,  D.  C.  S.  D.  Cal.,  May,  1895,  68  Fed.  475. 

• 97,  357 

United  States  v.  Louie  Juen,  D.  C.  D.  Montana,  Mar.,  1904,  128  Fed. 

522 360,  574,  585 

United  States  v.  Louie  Lee,  D.  C.  W.  Tenn.,  W.  D.,  Feb.,  1911,  184 

Fed.  651 569,  598,  603,  642,  643 

United  States  v.  Loy  Too,  D.  C.  N.  D.  N.  Y.,  Sept.,  1906,  147  Fed. 

750  641,  642,  643 

United  States  v.  Luey  Guey  Auck,  D.  C.  D.  Vt.,  Mar.,  1902,  114  Fed. 

252  629 

United  States  v.  Lung  Hong,  D.  C.  N.  D.  Ohio  W.  D.,  May,  1900,  105 

Fed.  188 , 573,  611 

United  States  ex  rel.  Reinmann  v.  Martin,  D.  C.  W.  D.  N.  Y.,  Feb., 

1912,  193  Fed.  795 183,  287,  308,  520 

United  States  v.  Mar  Ying  Yuen,  D.  C.  W.  D.  Texas,  El  Paso  Div., 

May,  1903,  123  Fed.  159 72,  638 

United  States  v.  McCallum  et  ah,  C.  C.  D.  Mass.,  Jan.,  1891,  44  Fed. 

745 68,  193 

United  States  v.  M ’Elroy,  C.  C.  D.  N.  J.,  May,  1902,  115  Fed.  252,  . . 217 

United  States  v.  Mock  Chew,  C.  C.  A.  9th  Ct.,  Jan.,  1893,  54  Fed.  490. 

,....579,  602 

United  States  v.  May  Gim  and  five  other  cases,  D.  C.  D.  R.  I.  April, 


1902,  115  Fed.  652 359 

United  States  v.  Moy  Yee  Tai,  C.  C.  A.  2nd  Ct.,  May,  1901,  109  Fed. 

1 640 


United  States  v.  Moy  You  et  al.,  D.  C.  N.  D.  N.  Y.,  Dec.,  1903,  126 

Fed.  226 597,  631 

United  States  v.  Nakashima,  C.  C.  A.  9th  Ct.,  Feb.,  1908,  160  Fed. 

842  72,  79,  238,  338,  429,  449,  463,  504,  516,  517,  537,  546 

United  States  v.  Ng  Park  Tan,  D.  C.  N.  D.  Cal.,  April,  1898,  86  Fed. 

605 362,  579 

United  States  v.  Ngum  Lun  May,  D.  C.  D.  Oregon,  April,  1907,  153 

Fed.  209 616 

United  States  v.  2STg  Young,  D.  C.  1ST.  D.  N.  Y.,  Dec.,  1903,  126  Fed, 

425 641,  653 

United  States  v.  Nord-Deutscher  Lloyd,  C.  C.  S.  D.  N.  Y.,  April,  1911, 

186  Fed.  391 228,  257 

United  States  v.  North  German  Lloyd  and  other  case,  C.  C.  S.  D.  N.  Y., 

Feb.,  1911,  185  Fed.  158 211,  264 

United  States  v.  Pagliano,  C.  C.  S.  D.  N.  Y.,  Jan.,  1893,  53  Fed.  1001. 

205,  206 

United  States  v.  Pavy,  D.  C.  E.  D.  N.  Y.,  Jan.,  1912,  193  Fed.  1006. . 

’ 251,  252,  257 

United  States  v.  Pin  Kwan,  C.  C.  A.  2nd  Ct.,  Feb.,  1900,  100  Fed.  609. 

344,  578,  579,  612 


xxii 


Table  of  Cases. 


United  States  ex  rel.  Bryon  v.  Prentis,  D.  C.  N.  D.  111.,  June,  1910, 

182  Fed.  894 211,  455 

United  States  ex  rel.  Calamia  v.  Redfern,  C.  C.  E.  D.  La.,  May,  1910, 

180  Fed.  506 178,  268,  272,  273,  463,  464,  601 

United  States  ex  rel.  Pazos  v.  Redfern,  C.  C.  E.  D.  La.,  June,  1910, 

180  Fed.  500 189,  286,  293,  518,  555 

United  States  ex  rel.  Ruiz  v.  Redfern,  C.  C.  E.  D.  La.,  April,  1911, 

186  Fed.  603 676 

United  States  ex  rel.  Barlin  v.  Rodgers,  C.  C.  A.  3rd  Ct.,  Dec.,  1911, 

191  Fed.  790 442,  622 

United  States  ex  rel.  Devine  v.  Rodgers,  D.  C.  E.  D.  Pa.,  June,  1901, 

109  Fed.  886 182,  383,  509 

United  States  ex  rel.  di  Rienzo  v.  Rodgers,  D.  C.  E.  D.  Pa.,  Oct.,  1910, 

182  Fed.  274 238,  382,  421 

United  States  ex  rel.  di  Rienzo  v.  Rodgers,  C.  C.  A.  3rd  Ct.,  April, 

1911,  185  Fed.  334 377,  382,  622 

United  States  ex  rel.  Fischer  v.  Rodgers,  D.  C.  E.  D.  Pa.,  April, 

1906,  144  Fed.  711 382,  517 

United  States  ex  rel.  Goldstein  v.  Rogers,  C.  C.  E.  D.  Pa.,  Jan.,  1895, 

65  Fed.  787 536 

United  States  v.  Rout,  D.  C.  E.  D.  Pa.,  May,  1909,  170  Fed.  201, 106 

United  States  v.  Sandrey,  C.  C.  E.  D.  La.,  Dec.,  1891,  48  Fed.  550  . . 

70,  193,  236,  472 

United  States  v.  Seabury,  D.  C.  N.  D.  Cal.,  Dec.,  1904,  133  Fed.  983. 

253,  336 

United  States  v.  Seid  Bow,  D.  C.  D.  Vt.,  June,  1905,  139  Fed.  56 360 

United  States  ex  rel.  Huber  v.  Sibray,  C.  C.  W.  D.  Pa.,  April,  1910, 

178  Fed.  144 179,  268,  625 

United  States  ex  rel.  Huber  v.  Sibray,  C.  C.  W.  D.  Pa.,  April,  1910, 

178  Fed.  150 207,  269,  413,  625 

United  States  v.  Sing  Lee,  D.  C.  D.  Oregon,  Jan.,  1896,  71  Fed.  680.  360 

United  States  v.  Sing  Lee,  D.  C.  W.  D.  N.  Y.,  Oct.,  1903,  125  Fed. 

627 565,  573,  601,  680 

United  States  v.  Sprung,  C.  C.  A.  4th  Ct.,  Feb.,  1910,  187  Fed.  903. 

274,  383,  386,  409,  464,  469,  509,  520,  540 

United  States  v.  Spruth,  D.  C.  E.  D.  Penn.,  Jan.,  1896,  71  Fed.  678. . 251 

United  States  v.  Sun,  D.  C.  D.  Vt.,  Nov.,  1896,  76  Fed.  450 609 

United  States  v.  Thompson,  C.  C.  S.  D.  N.  Y.,  Nov.,  1889,  41  Fed.  28. 

189,  193 

United  States  v.  Too  Toy,  D.  C.  S.  D.  N.  Y.,  Mar.,  1911,  185  Fed.  838.  569 

United  States  v.  Trumbull,  D.  C.  D.  Wash.  N.  D.,  June,  1891,  46  Fed. 

755 108,  109 

United  States  v.  Tuck  Lee,  D.  C.  N.  D.  N.  Y.,  Mar.,  1903,  120  Fed. 

989 358,  363,  580 

United  States  v.  Tye,  D.  C.  D.  Oregon,  Oct.,  1895,  70  Fed.  318. 

96,  223 

United  States  v.  Villet,  C.  C.  S.  D.  N.  Y.,  Oct.,  1909,  173  Fed.  500. 

185,  470,  504 

United  States  v.  Walker,  C.  C.  E.  D.  N.  Y.,  June,  1907,  156  Fed.  987.  106 

United  States  ex  rel.  Funaro  v.  Watchorn,  C.  C.  S.  D.  N.  Y.,  Aug., 


Table  of  Oases. 


xxiii 


1908,  164  Fed.  152 178,  459,  491,  502,  504 

United  States  ex  rel.  Mango  v.  Weis,  D.  C.  D.  Md.,  Sept.,  1910,  181 

Fed.  860 211,  455,  467 

United  States  v.  Williams,  D.  C.  N.  D.  Cal.,  Dec.,  1897,  83  Fed.  997. 

94,  599,  630 

United  States  ex  rel.  Abdoo  v.  Williams,  C.  C.  S.  D.  N.  Y.,  Sept.,  1904, 

132  Fed.  895 382 

United  States  ex  rel.  d ’Amato  v.  Williams,  D.  C.  S.  D.  N.  Y.,  July, 

1909,  193  Fed.  228 515 

United  States  ex  rel.  Bosny  v.  Williams,  D.  C.  S.  D.  N.  Y.,  Feb.,  1911, 

185  Fed.  598 540,  625 

United  States  ex  rel.  Buccino  v.  Williams,  C.  C.  S.  D.  N.  Y.,  Oct.,  1911, 

190  Fed.  897 40,  523,  557,  617 

United  States  ex  rel.  Canfora  v.  Williams,  D.  C.  S.  D.  N.  Y.,  Feb., 

1911,  186  Fed.  354 622 

United  States  ex  rel.  Chanin  v.  Williams,  C.  C.  A.  2nd  Ct.,  Mar.,  1910, 

177  Fed.  689 80,  295,  536,  653 

United  States  ex  rel.  Dickman  v.  Williams,  D.  C.  S.  D.  N.  Y.,  Nov., 

1910,  183  Fed.  904 211 

United  States  ex  rel.  Elliopulous  v.  Williams,  C.  C.  A.  2nd  Ct.,  Dec., 

1911,  192  Fed.  536 178,  461 

United  States  ex  rel.  Falco  v.  Williams,  C.  C.  S.  D.  N.  Y.,  Nov.,  1911, 

191  Fed.  1001 617 

United  States  ex  rel.  Freeman  v.  Williams,  D.  C.  S.  D.  N.  Y.,  Jan., 

1910,  175  Fed.  274 72,  175,  263,  268,  269,  519 

United  States  ex  rel.  Glavas  v.  Williams,  G.  C.  S.  D.  N.  Y.,  Feb., 

1911,  190  Fed.  686 178,  524,  527 

United  States  ex  rel.  Klein  et  ux.  v.  Williams,  C.  C.  S.  D.  N.  Y.,  Aug., 

1911,  189  Fed.  915 519 

United  States  ex  rel.  Nicola  v.  Williams,  D.  C.  S.  D.  N.  Y.,  Oct.,  1909, 

173  Fed.  626 407 

United  States  ex  rel.  Ueberall  v.  Williams,  D.  C.  S.  D.  N.  Y.,  April, 

1911,  187  Fed.  470 451,  470,  504,  676 

United  States  v.  “ George  E.  Wilton/ ’ D.  C.  N.  D.  Wash.,  1890,  43 

Fed.  606 109 

United  States  v.  Wong  Ah  Gah,  D.  C.  D.  Vt.,  May,  1899,  94  Fed.  831.  612 

United  States  v.  Wong  Ah  Hung,  D.  C.  N.  D.  Cal.,  Aug.,  1894,  62 

Fed.  1005 , 364 

United  States  v.  Wong  Chow,  C.  C.  A.  5th  Ct.,  April,  1901,  108  Fed. 

376 491,  502 

United  States  v.  Wong  Chung,  D.  C.  N.  D.  N.  Y.,  Feb.,  1899,  92  Fed. 

141 510,  519,  634 

United  States  v.  Wong  Dep  Ken,  D.  C.  S.  D.  Cal.,  June,  1893,  57 

Fed.  203 336 

United  States  v.  Wong  Dep  Ken,  D.  C.  S.  D.  Cal.,  July,  1893,  57  Fed. 

206 95,  616,  639 

United  States  v.  Wong  Du  Bow,  D.  C.  D.  Montana,  Nov.,  1904,  133 

Fed.  326 571 

United  States  v.  Wong  Hong,  D.  C.  S.  D.  Cal.,  Dec.,  1895,  71  Fed. 

283 


361 


XXIV 


Table  of  Cases. 


United  States  v.  Wong  Kee,  D.  C.  S.  D.  N.  Y.,  Nov.,  1911,  192  Fed. 

583  660 

United  States  v.  Wong  Lung,  D.  C.  D.  Vt.,  May,  1900,  103  Fed.  794. 

360,  569,  585,  600 

United  States  v.  Wong  Ock  Hong,  D.  C.  D.  Oregon,  1910,  179  Fed. 

1004 570,  640,  642 

United  States  v.  Wong  Quong  Wong,  D.  C.  D.  Vt.,  June,  1899,  94 

Fed.  832 '. 19 

United  States  v.  Wong  Soo  Bow,  D.  C.  D.  Vt.,  Dec.,  1901,  112  Fed. 

416 502 

United  States  v.  Wood,  D.  C.  D.  N.  J.,  Oct.,  1907,  159  Fed.  187. . . . 106 

United  States  v.  Wood,  D.  C.  D.  N.  J.,  Mar.,  1909,  168  Fed.  438. 

72,  106,  109,  514 

United  States  v.  Yamasaka,  C.  C.  A.  9th  Ct.,  Feb.,  1900,  100  Fed. 

404 74,  539 

United  States  v.  Yee  Gee  You,  O.  C.  A.  4th  Ct.,  Mar.,  1907,  152  Fed. 

157 573,  585,  651 

United  States  v.  Yee  Kee  Guey,  United  States  v.  Yee  Yet,  D.  C.  D. 

N.  J.,  Nov.,  1911,  192  Fed.  577 666 

United  States  v.  Yee  Oung  Yuen,  C.  C.  A.  8th  Ct.,  1911,  191  Fed.  28. 

370,  589,  600 

United  States  v.  Yee  Yen  Tai  et  al.,  C.  C.  A.  2nd  Ct.,  May,  1901,  108 

Fed.  950 643 

United  States  v.  Yong  Yew,  D.  C.  E.  D.  Mo.  E.  D.,  Nov.,  1897,  83 

Fed.  832 28,  94,  97,  579 

United  States  v.  Yung  Chu  Keng,  D.  C.  D.  Montana,  Sept.,  1905,  140 

Fed.  748 346,  635,  651 

United  States  v.  Yuen  Pak  Sune,  D.  C.  N.  D.  N.  Y.,  Nov.,  1910,  183 

Fed.  260.... 308,  674 

United  States  v.  Yuen  Yee  Sum,  D.  C.  D.  Oregon,  April,  1907,  153 

Fed.  494  638,641 

Vito  Rullo,  in  re,  C.  C.  S.  D.  N.  Y.,  May,  1890,  43  Fed.  62 481,  483 

Warren  v.  United  States,  C.  C.  A.  1st  Ct.,  Nov.,  1893,  58  Fed.  559. . 251 

Watchorn,  ex  parte,  C.  C.  S.  D.  N.  Y.,  April,  1908,  160  Fed.  1014.  178 

Waterhouse  & Co.  v.  United  States,  C.  C.  A.  9th  Ct.,  1908,  159  Fed. 

876 234,  236,  513,  538,  539 

Way  Tai,  in  re,  C.  C.  D.  Oregon,  Aug.,  1899,  96  Fed.  484 

250,  336,  491,  502,  518,  617 

Williams  v.  United  States  ex  rel.  Bougadis,  C.  C.  A.  2nd  Ct.,  Mar., 

1911,  186  Fed.  479 308,  463 

Wing  You,  ex  parte,  C.  C.  A.  9th  Ct.,  Sept.,  1911,  190  Fed.  294. . . . 620 

Woey  Ho  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1901,  109  Fed.  888. 

386,  573,  651 

Worn  Ah  Gar  v.  United  States,  D.  C.  D.  Vt.,  May,  1899,  94  Fed.  831. . 97 

Wong  Chun  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1909,  170  Fed. 


182 270,  651 

Wong  Fock,  in  re,  D.  C.  N.  D.  Cal.,  May,  1897,  81  Fed.  558 

,.632,  636 

Wong  Fong  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1896,  77  Fed. 

168 97,  612 


Table  of  Cases. 


xxv 


Wong  Heung  v.  Ellicott,  C.  C.  A.  9th  Ct.,  May,  1910,  179  Fed.  110. 

185,  368,  383,  384,  650 

Wong  Kim  Ark,  in  re,  D.  C.  N.  D.  Cal.,  Jan.,  1896,  71  Fed.  382 413 

Wong  Sang,  ex  parte,  D.  C.  D.  Mass.,  Nov.,  1905,  143  Fed.  147. 

535,  537 

Wong  Sang  v.  United  States,  C.  C.  A.  1st  Ct.,  Jan.,  1906,  144  Fed.  968. 

338,  537 

Wong  Sang  v.  United  States,  C.  C.  A.  1st  Ct.,  Mar.,  1906,  144  Fed. 

968 18,  535,  641 

Wong  You  et  al.,  ex  parte,  D.  C.  N.  D.  N.  Y.,  1910,  176  Fed.  933. . . . 

103,  551,  619,  672,  673,  680 

Wong  You  et  al.  v.  United  States,  C.  C.  A.  2nd  Ct.,  June,  1910,  181 

Fed.  313 103,  551,  673 

Woo  Jew  Dip  v.  United  States,  C.  C.  A.  5th  Ct.,  Dec.,  1911,  192  Fed. 

471  * 651 

Wo  Tai  Lai,  in  re,  D.  C.  N.  D.  Cal.,  Aug.,  1888,  46  Fed.  668 578,  589 

Wy  Shing  and  1 other  case,  in  re,  C.  C.  N.  D.  Cal.,  Nov.,  1888,  36 

Fed.  553 413 

Yee  Ging  v.  United  States,  D.  C.  W.  S.  Texas,  El  Paso  Div.,  Aug., 

1911,  190  Fed.  270 569 

Yee  King  v.  United  States,  C.  C.  A.  2nd  Ct.,  May,  1910,  179  Fed. 

368 569,  650 

Yee  Lung,  in  re,  D.  C.  N.  D.  Cal.,  May,  1894,  61  Fed.  641 

97,  357,  575,  613 

Yee  N'Goy  v.  United  States,  C.  C.  A.  9th  Ct.,  May,  1902,  116  Fed. 

333 548,  571,  631,  632 

Yee  Yee  Chung  v.  United  States,  D.  C.  W.  D.  Texas,  June,  1899,  95 

Fed.  432 681 

Yee  Yet  v.  United  States,  C.  C.  A.  2nd  Ct.,  Jan.,  1910,  175  Fed.  565.  650 

Yee  Yuen  v.  United  States,  C.  C.  A.  9th  Ct.,  Oct.,  1904,  133  Fed. 

222 573 

Yew  Bing  Hi,  in  re,  D.  C.  D.  Mass.,  Jan.,  1904,  128  Fed.  319 

94,  97,  357,  360,  585 

Yuen  Pak  Sune  v.  United  States,  C.  C.  A.  2nd  Ct.,  Nov.,  1911,  191 

Fed.  825 651 

Yung  Ling  Hee,  in  re,  D.  C.  D.  Oregon,  Oct.,  1888,  36  Fed.  437 

413,  486 


INSULAR  DECISIONS. 

I. 

UNITED  STATES  DISTRICT  COURT,  HAWAII. 


Ah  Sing,  in  re,  1 U.  S.  D.  C.  Hawaii  15 474 

Berger  v.  Bishop,  1 U.  S.  D.  C.  Hawaii  405 227 

Chop  Tin,  in  re,  2 U.  S.  D.  C.  Hawaii  153 512,  516 

Koon  Ko  and  Koon  Heen,  in  re,  3 U.  S.  D.  C.  Hawaii  623 126,  498 

Leong  Sai,  in  re,  1 U.  S.  D.  C.  Hawaii  234 602 

Pang  Kun,  in  re,  2 U.  S.  D.  C.  Hawaii  192 512 


xxvi  Table  of  Cases. 

Sue  Yen  Hoon,  3 U.  S.  D.  C.  Hawaii  606 522,  535 

Umeno,  in  re,  3 U.  S.  D.  C.  Hawaii  481 177,  540 

United  States  v.  Cam  You,  1 U.  S.  D.  C.  Hawaii  113 360,  367,  368 

United  States  v.  Ching  King  Hee,  3 U.  S.  D.  C.  Hawaii  556 616 

United  States  v.  Ching  Tai  Sai  and  Ching  Tai  Sun,  1 U.  S.  D.  C. 

Hawaii  118 126 

United  States  v.  Cut  Yong,  1 U.  S.  D.  C.  Hawaii  104 360,  571,  607 

United  States  v.  Meyama,  1 U.  S.  D.  C.  Hawaii  399 208 

United  States  v.  Wong  Kock  Yii,  3 U.  S.  D.  C.  Hawaii  67 108 

United  States  v.  Yamamoto,  3 U.  S.  D.  C.  Hawaii  224 287 

Wong  Lin,  in  re,  1 U.  S.  D.  C.  Hawaii  44 571 

Yim  Quok  Leong,  1 U.  S.  D.  C.  Hawaii  166 536 

II. 

SUPREME  COURT,  PHILIPPINE  ISLANDS. 

Allen,  in  re,  2 Phil.  Rep.  630 113,  114 

Fornow  v.  Hoffmeister,  6 Phil.  Rep.  33 189 

Go  To  Sun  v.  McCoy,  16  Phil.  Rep.  497 535 

Jao  Igco  v.  Shuster,  10  Phil.  Rep.  448 498 

Juan  Co.  y.  Rafferty,  14  Phil.  Rep.  235 508 

Ko  Poco  v.  McCoy,  10  Phil.  Rep.  442 451 

Lo  Po  y.  McCoy,  8 Phil.  Rep.  343 450 

Lorenzo  v.  McCoy,  15  Phil.  Rep.  559 360,  535 

Lun  Jao  Lu  v.  McCoy,  10  Phil.  Rep.  641 498 

Ngo  Ti  v.  Shuster,  7 Phil.  Rep.  355 116,  535 

Oehlers  v.  Hartwig,  5 Phil.  Rep.  487 217 

Rafferty  v.  Judge  of  1st  Instance,  7 Phil.  Rep.  164 508 

Teerthdass  v.  Pohoomul  Bros.,  15  Phil.  Rep.  705 187 

United  States  v.  Almond,  6 Phil.  Rep.  306 257 

United  States  v.  Ballentine,  5 Phil.  Rep.  312 122 

United  States  v.  Chan  Sam,  17  Phil.  Rep.  448 121,  352 

United  States  v.  Go  Siaco,  12  Phil.  Rep.  490 666 

United  States  v.  Lim  Co.,  12  Phil.  Rep.  703 121 

United  States  v.  Sy  Quiat,  12  Phil.  Rep.  676  122 

United  States  v.  Tan  Sam  Pao,  15  Phil.  Rep.  592 612 

PORTO  RICO  FEDERAL  REPORTS. 

United  States  v.  Michelana,  1 P.  R.  Fed.  Rep.  209 224 


The  Exclusion  and  Expulsion  of 
Aliens  in  the  United  States 


CHAPTER  I. 

POWER  AND  METHODS  OF  EXCLUSION  AND  EXPULSION. 

I. 

I.  General  Right  of  Governments  to  Exclude  or  Expel. 

II.  Limitations  Imposed  by  International  Law  on  the  Exercise 

of  the  Right. 

III.  The  Exercise  of  the  Power  in  the  United  States. 

A.  In  General. 

B.  Regulation  of  Immigration  by  Treaty. 

1.  The  Treaties  with  China. 

(A.)  The  Treaty  of  November  17,  1880. 

(B.)  The  Treaty  of  December  8,  1894. 

2.  The  Most  Favored  Nation  Clause  as  Affecting  the  Opera- 

tion of  the  Exclusion  and  Immigration  Laws. 

(A.)  The  Treaties  with  China. 

(B.)  The  Treaty  with  Denmark  of  May  6,  1826. 

(C.)  The  Treaty  with  Italy  of  April  29,  1871. 

(D.)  The  Treaty  with  Japan  of  March  21,  1895. 

C.  Effect  on  Existing  Treaties  or  Laws  of  Subsequent 

Laws  or  Treaties. 

D.  Regulation  of  Immigration  by  Legislative  Enactment. 

1.  The  Immigration  Acts. 

(A.)  The  Alien  Act  of  1798. 

(B.)  The  Coolie  Trade  Acts  of  1862  and  1869. 

(C.)  The  Act  of  May  31,  1870. 

(D.)  State  Laws  Concerning  Immigration. 

(1.)  New  York. 

(2.)  Massachusetts. 

(3.)  California. 

(E.)  The  Act  of  March  3,  1875. 

(F.)  The  Act  of  August  3,  1882. 


2 


The  Exclusion  and  Expulsion  of  Aliens. 


(G.)  The  Act  of  February  26,  1885,  as  Amended  by 
the  Act  of  February  23,  1887. 

(H.)  The  Act  of  March  3,  1891. 

(I.)  The  Act  of  March  3,  1893. 

( J.)  The  Act  of  March  3,  1903. 

2.  The  Chinese  Exclusion  Acts. 

(A.)  The  Acts  of  May  6,  1882,  and  of  July  5,  1884. 

(B.)  The  Act  of  September  13,  1888. 

(C.)  The  Act  of  October  1,  1888. 

(D.)  The  Act  of  May  5,  1892. 

(E.)  The  Act  of  November  3,  1893. 

(F.)  The  Act  of  August  18,  1894. 

(G.)  The  Act  of  March  3,  1901. 

(H.)  The  Act  of  April  29,  1902. 

(I.)  The  Act  of  February  14,  1903. 

(J.)  The  Act  of  April  27,  1904. 

(K.)  The  Application  of  the  Immigration  Acts  to 
Chinese. 

(L.)  Crimes  and  Penalties  Under  the  Chinese  Ex- 
clusion Acts. 

3.  The  Operation  of  the  Immigration  and  Chinese  Exclusion 

Laws  in  the  Insular  Possessions. 

(A.)  The  Philippine  Islands. 

(1.)  In  General. 

(2.)  Legislation  regulating  the  admission  of  Im- 
migrants. 

(3.)  Legislation  Regulating  the  Admission  or  Resi- 
dence of  Chinese. 

(a.)  Act  No.  317  of  the  Philippine  Commis- 
sion. 

(b.)  Act  No.  702  of  the  Philippine  Commis- 
sion. 

(B.)  The  Hawaiian  Islands. 

(C.)  Porto  Rico. 

4.  Constitutional  Power  of  Congress  to  Exclude  or  Expel. 

(A.)  In  General. 

(B.)  Power  of  Congress  to  Vest  Final  Determination  of 
Right  of  Aliens  to  Enter  or  Remain  in  Execu- 
tive Officers. 

(1.)  Of  the  Right  to  Enter  or  Remain  for  Resi- 
dential Purposes. 

(2.)  Of  the  Right  to  Regulate  the  Admission  of 
Aliens  for  the  Purpose  of  Transit. 

(C.)  Necessity  for  a Fair  Hearing. 

(D.)  Classes  Generally  Exempted  from  the  Exercise 
of  the  Power. 


Power  and  Methods. 


3 


I.  General  Right  of  Governments  to  Exclude  or  Expel. 

It  is  a generally  accepted  principle  of  international  law 
that  any  state,  being  an  independent  member  of  the  family 
of  nations,  may,  in  the  exercise  of  its  inherent  powers  of 
sovereignty,  prohibit  the  entrance  of  foreigners  into  its 
territory,  or  prescribe  the  conditions  under  which  they 
shall  be  allowed  to  enter,  and  that  this  may  be  done  either 
with  regard  to  foreigners  as  a whole,  or  only  as  to  certain 
classes  of  aliens.  Since  under  international  law  no  for- 
eigner can  claim,  as  of  right,  to  enter  the  jurisdiction  of  a 
sovereign  state  other  than  his  own,  it  necessarily  follows 
that  the  right  to  exclude  all  foreigners  is  recognized  under 
the  law  of  nations.  At  the  same  time  it  is  obvious  that 
under  conditions  as  they  exist  to-day,  no  civilized  nation 
would  enter  upon  the  indiscriminate  exercise  of  either 
the  right  of  exclusion  or  expulsion. 

“For  a state  to  exclude  all  foreigners,”  says  Mr.  Hall,1 
“would  be  to  withdraw  from  the  brotherhood  of  civilized 
peoples;  to  exclude  any  without  reasonable  or  at  least 
plausible  cause,  is  regarded  as  so  vexatious  and  oppressive 
that  a government  is  thought  to  have  the  right  of  inter- 
fering in  favor  of  its  subjects  in  cases  where  sufficient 
cause  does  not,  in  its  judgment,  exist.” 

But  the  fact  that  the  exercise  of  the  right  to  exclude  by 
one  nation  may  appear  unwarranted  from  the  standpoint 
of  the  state  whose  citizens  have  been  subjected  to  such 
treatment,  and  may,  with  the  full  sanction  of  international 
law  lead  to  diplomatic  intervention,  reprisals,  or  even  war, 
is  no  argument  against  the  existence  of  the  general  right 
to  do  so.  The  Supreme  Court  of  the  United  States  has 
held  that  jurisdiction  over  its  own  territory  to  the  extent 
of  enabling  it  to  exclude  or  expel  aliens  therefrom  is  the 
right  of  every  independent  nation,  and  constitutes  a part 
of  its  independence ; that  if  it  could  not  exercise  this  power 
it  would  be  to  that  extent  subject  to  the  control  of  another 

Hnternational  Law,  4th  Ed.,  p.  223. 


4 


The  Exclusion  and  Expulsion  of  Aliens. 


nation;  that  to  preserve  its  independence  and  to  provide 
security  against  foreign  aggression  and  encroachment  is 
the  highest  duty  of  a state,  and  to  attain  these  ends  all 
other  considerations  are  to  be  subordinated,  irrespective 
of  whether  or  not  aggression  or  encroachment  are  the  re- 
sult of  national  acts  on  the  part  of  unfriendly  states,  or 
arise  merely  from  the  influx  of  undesirable  aliens  into  the 
country.2  In  other  words,  inasmuch  as  the  right  of  self- 
preservation  exists  unlimited  and  unabridged  in  every 
independent  state,  the  right  to  take  any  steps  which,  in  the 
opinion  of  the  state  itself,  are  necessary  to  guarantee  its 
absolute  protection,  must  be  equally  unlimited;  and  the 
state  itself  must,  perforce,  be  the  only  judge  as  to  the 
existence  of  the  contingency  on  which  its  action  is  based, 
the  nature  of  the  action  to  be  taken,  and  the  persons  or 
classes  of  persons  who  shall  be  subjected  to  its  effects. 
That  the  absolute  right  to  exclude  or  expel  in  the  public  in- 
terest of  the  state  exists  in  every  independent  nation  is 
admitted  on  all  hands  by  publicists  and  recognized  au- 
thorities on  international  law.3 

“It  is  at  all  events  certain/’  says  Pradier-Fodere,4  “that 
the  power  which  every  state  has  to  expel  strangers  from 
its  territory  is  one  of  the  complementary  elements  of  the 
protection  to  society  which  is  the  end  and  purpose  of  the 
right  to  inflict  punishment.  This  power  to  compel  a 
stranger  to  leave  the  country  by  causing  him,  if  need  be, 
to  be  conducted  to  the  frontier,  is  the  immediate  result 

2Chae  Chan  Ping  v.  United  States,  130  U.  S.  531,  32  Law  Ed.  1068;  Fong 
Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

31  Yattel  Law  of  Nations,  chap.  19,  par.  230,  231;  2 Ortolan,  Diplomatie 
de  la  Mer  (4th  Ed.),  chap.  14,  p.  297;  1 Phillimore,  International  Law 
(3d  Ed.),  chap  10,  par.  220;  Bar,  International  Law  (Gillespie’s  Ed., 
1883,  708,  Note  711;  Fiore,  Nouv.  dr.  int.  publ.  (2d  Ed.)  (Antoine’s  trans- 
lation into  the  French),  t.  1,  n.  699,  t.  3,  n.  1297,  p.  93;  Calvo,  Le  dr. 
int.  (5th  Ed.)  (French),  Yol.  2,  par.  700;  Bonfils,  Manuel  du  Droit  Int. 
Pub.,  par.  442;  Darut,  De  1 ’Expulsion  des  Etrangers:  Aix,  1902;  Moore 
Int.  Law  Dig.,  Vol.  IY,  par.  550,  p.  68;  Martini,  l’Expulsion  des 
Etrangers,  p.  14. 

4Yol.  Ill,  Traite  de  Droit  International  Public,  par.  1857. 


Power  and  Methods. 


5 


of  sovereignty.  It  is  vain  to  deny  the  existence  of  this 
right  by  alleging  that  human  liberty  is  the  most  sacred 
of  all  natural  rights,  and  that  its  complete  development  is 
not  limited  by  the  boundaries  of  the  country  of  which  one 
is  a citizen;  that  it  is  contrary  to  the  principles  of  law 
and  to  the  true  interests  of  the  people  to  abridge  complete 
freedom  in  the  maintenance  of  permanent  relations  between 
the  nationals  of  the  various  states;  that  expulsion  is  a 
penalty,  and  that  an  individual  who  has  not  been  found 
guilty  cannot  be  punished;  that  the  state  which  believes 
that  it  has  cause  to  complain  of  a stranger’s  acts  will  deal 
more  equitably  in  bringing  him  before  a judicial  tribunal 
in  order  to  determine  whether  he  is  innocent  or  guilty. 
This  argument  may  always  be  successfully  met  by  show- 
ing that  the  right  of  dwelling  unrestricted  in  any  place 
may  be  subjected  to  limitations  in  the  general  interest  of 
the  political  community,  as  may  all  rights ; and  that,  with 
regard  to  persons  who  fall  short  of  living  up  to  those 
obligations  which  arise  from  the  enjoyment  by  them  of 
the  hospitality  of  the  particular  nation  and  turn  out  to  be 
objects  of  anxiety  or  permanent  sources  of  danger  or 
scandal  to  the  state  which  receives  them,  there  is  no 
obligation  on  the  part  of  the  state  to  exercise  generosity 
up  to  the  point  of  imposing  upon  its  authorities  the  obliga- 
tion of  keeping  them  under  surveillance  for  the  purpose 

of  thwarting  their  criminal  machinations ” 

The  exercise  of  the  right  of  expulsion  is  generally  dis- 
cussed by  the  European  authorities  in  connection  with  the 
performance  of  some  act  or  acts  on  the  part  of  the  alien 
constituting  in  itself  an  immediate  cause  or  justification 
for  the  measure  adopted.5  But  since  the  mere  presence 

5Acts  of  an  anarchistic  or  socialistic  tendency.  Expulsion  of  Prince  Kro- 
potkin, Switzerland,  1881.  Condonation  of  assassination.  Expulsion  of 
Laurent  Tilhade,  Belgium,  1901.  Organization  of  labor  unions,  case  of 
Ben  Tillet,  Belgium,  1896.  Espionage,  Hoffman  case,  Switzerland,  1893; 
Richthofen  case,  Switzerland,  1902.  Intrigues  against  the  State,  The  Span- 
ish Ambassador,  Great  Britain,  1584;  the  French  Minister,  Great  Britain, 
1654;  the  Swedish  Minister,  Great  Britain,  1717;  the  British  Ambassador, 


6 


The  Exclusion  and  Expulsion  of  Aliens. 


of  aliens,  apart  from  particular  acts  done  or  threatened 
to  be  done  by  them  such  as  tend  to  injure  or  destroy  the 
peace  of  the  state,  may  constitute  a menace  to  its  security, 
that  presence  may  of  itself  justify  their  expulsion.  In 
this  country  the  exercise  of  the  right  of  expulsion  for  the 
commission  of  a particular  act  or  acts  had,  up  to  the 
passage  of  the  act  of  March  3d,  1903,  rarely,  if  ever,  been 
exercised.6  Under  the  Exclusion  and  Immigration  acts 
proceedings  for  the  exclusion  or  expulsion  of  aliens  have 
invariably  been  held  by  the  courts  to  be  proceedings  not 
criminal  in  nature,  and  deportation  not  to  be  punishment 
for  crime.  “Deportation,”  says  Mb.  Justice  Gray,  speak- 
speaking for  the  court  in  the  case  of  Fong  Yue  Ting, 
supra,  “is  the  removal  of  an  alien  out  of  the  country, 
simply  because  his  presence  is  deemed  inconsistent  with 
the  public  welfare,  and  without  any  punishment  being 
imposed  or  contemplated,  either  under  the  laws  of  the 
country  out  of  which  he  is  sent,  or  those  of  the  country 
to  which  he  is  taken.”  7 

Expulsion  constitutes  neither  banishment  nor  extradi- 

Spain,  1848;  the  Spanish  Ambassador,  France,  1718.  Intrigues  against 
third  'powers.  The  case  of  General  Boulanger,  Belgium,  1889;  the  case  of 
the  Count  of  Cambord,  Belgium,  1872;  the  case  of  ex-President  Castro, 
France  (Martinique),  1909.  Resisting  the  Law,  Montagnini’s  case,  France, 
1906;  case  of  the  Apostolic  Nuncio,  Argentine,  1884.  Anti-militarism.  Case 
of  Hugo  Nanni,  France;  and  case  of  Father  Forbes,  France,  1892.  Trea- 
sonable utterances.  Case  of  the  six  Italians,  Switzerland,  1901.  Insult 
to  the  National  Flag.  Ghio’s  case,  France.  See  Martini  l’Expulsion  des 
Etrangers,  Chapter  on  Causes  of  Expulsion,  pages  54  to  80. 

eSection  3 of  the  present  Immigration  Law,  as  amended  by  section  2 of 
the  Act  of  March  26th,  1910,  provides  for  the  expulsion  of  aliens  found  to 
be  inmates  of  or  connected  with  houses  of  prostitution  or  engaging  in 
similar  practices  after  entering  the  United  States;  before  its  amendment 
the  period  in  which  the  alien  could  be  deported  was  three  years  after  entry, 
the  act  “ being  an  inmate  of  a house  of  prostitution  or  practicing  prostitu- 
tion’ ’ and  the  only  class  of  aliens  subject  to  the  measure  “women  or 
girls.  ’ ’ 

7The  Act  of  March  26th,  1910,  provides  that  any  alien  who  shall  have  been 
debarred  or  deported  under  its  second  section  and  who  attempts  to  return 
to  or  enter  this  country  shall  be  deemed  guilty  of  a misdemeanor  and  shall 
be  imprisoned  for  not  more  than  two  years. 


Power  and  Methods. 


7 


tion.8  The  distinction  between  expulsion  on  the  one  hand 
and  banishment  and  extradition  on  the  other  is  clearly 
pointed  out  by  a European  writer  :9  “Those  who 
have  been  banished  are,  like  those  who  are  expelled, 
forced  to  leave  the  country;  but,  whereas  those  who 
are  subjected  to  banishment  are  compelled  to  de- 
part only  when  lawfully  convicted  of  a crime 
which  entails  banishment  as  its  penalty,  those  who 
are  expelled  are  subject  to  deportation  on  being 

served  with  an  official  order  to  that  effect The 

Government,  on  the  one  hand,  issues  the  order  of  expul- 
sion (deportation)  in  due  course  and  at  its  discretion 
without  any  preliminary  understanding  with  the  state  of 
which  the  party  expelled  is  a national;  and  on  the  other 
hand  the  grounds  of  expulsion  need  not  be  set  out  in 
the  order,  for,  on  principle,  the  Government  is  the  sole 
judge  as  to  the  necessity  to  deport.  This  absence  of  prior 
entente  with  the  state  to  which  the  deportee  belongs  re- 
sults in  expulsion  being  a unilateral  act,  differing  essen- 
tially thereby  from  extradition,  with  which  expulsion  is 
at  times  confused.  Extradition  presupposes  a prior  un- 
derstanding between  states,  as  a matter  of  course ; it  con- 
stitutes a bilateral  act  in  the  form  of  a convention  agreed 
upon  between  two  states.  When  a state  extradites  a per- 
son, or  in  other  words  delivers  up  an  individual  accused  of 
crime,  or  who  has  actually  been  found  guilty  of  an  offense 
committed  outside  of  its  jurisdiction  and  against  the  laws 
of  the  state  which  is  seeking  to  have  him  extradited,  and 
which  has  the  right  to  determine  and  to  punish  his  guilt, 
this  is  done  by  force  of  prior  treaties  or  by  virtue  of  a 
special  agreement  between  states.  When,  on  the  other 

hand,  a state  expels, it  is  not  because  it  is  under 

any  obligation  to  do  so  based  on  a contract  with  another 
state ” 

If  a sovereign  State  has  right  to  expel  foreigners 

sFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law.  Ed.  905. 

9 Alexis  Martini,  1 ’Expulsion  des  Etrangers,  pp.  5 and  6. 


8 


The  Exclusion  and  Expulsion  of  Aliens. 


from  its  dominions  it  has,  a fortiori } the  right  to  prohibit 
their  entrance  into  its  jurisdiction.  “The  right  of  a nation,” 
says  Mr.  Justice  Gray,10  “to  expel  or  deport  foreigners 
who  have  not  been  naturalized  or  taken  any  steps  towards 
becoming  citizens  of  the  country  rests  upon  the  same 
grounds,  and  is  as  absolute  and  unqualified  as  the  right 
to  prohibit  and  prevent  their  entrance  into  the  country;” 
and  again,  in  the  same  opinion:  “The  power  to  exclude 
aliens  and  the  power  to  expel  them  rest  upon  one  founda- 
tion, and  are  derived  from  one  source,  are  supported  by 
the  same  reasons,  and  are  in  truth  but  parts  of  one  and 
the  same  power.” 

While  the  general  expulsion  of  all  foreigners  belonging 
to  a given  nation  has  been  on  more  than  one  occasion  jus- 
tified as  a war  measure — but  even  then  with  hesitation11 — 
nevertheless,  the  power  of  a nation  to  exercise  the  right 

ioFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

n 11  Wholesale  expulsion  in  war  time  is  an  act  of  defence,  a perfectly  legiti- 
mate measure  the  legality  of  which  cannot  be  contested Each  state 

may  proceed  to  the  wholesale  expulsion  of  the  citizens  of  the  other  bel- 
ligerent although  they  may  have  taken  up  their  abode  within  its  territory 

in  perfect  good  faith ” (Bonfils  et  Fauchille,  Man.  de  dr.  int.  publ., 

5th  Ed.,  n.  1055).  It  is,  however,  well  understood  that  expulsion  en 
masse  will  only  be  resorted  to  in  case  of  imminent  danger.  A declaration 
of  war  does  not  ipso  facto  involve  the  collective  expulsion  of  the  subjects 
of  the  enemy  residing  in  the  state.  Although  it  may  be  one  of  the  natural 
results  of  war  it  is  not  a necessary  result;  moreover,  when  a state  resorts 
to  this  measure  it  must  proceed  with  humanity  and  give  the  persons  sub- 
jected thereto  a reasonable  time  in  which  to  leave  the  country.  (Martini 
1 'Expulsion  des  Etrangers,  p.  88,  citing  Fiore,  Nouv.  dr.  int.  publ.,  2d  Ed., 
n.  12,  and  Heffter,  par.  121,  p.  267;  likewise  Bonfils  et  Fauchille,  ubi  supra.) 
The  states  which  have  exercised  this  right  in  war  time  are  France  (1870), 
Turkey,  (1897),  and  the  Transvaal  (1899-1902).  Among  those  which  have 
refrained  from  exercising  it  are,  Russia  (1854;  1904,  except  regarding  Jap- 
anese “in  the  territories  forming  a part  of  the  Lieutenancy  of  the  Extreme 
Orient”)  ; Japan  (1894  and  1904-5).  Although  writers  on  international  law 
find  no  difficulty  in  asserting  the  existence  of  the  right — and  if  it  exists  in 
peace  it  certainly  must  exist  in  times  of  war — its  result  is  almost  invariably 
to  subject  the  state  exercising  it  to  severe  criticism.  Hence  the  appearance 
of  so  many  “defences”  submitted  by  publicists  after  the  event.  See  M. 
Despagnet's  article  in  the  Rev.  gen.  de  dr.  int.  publ.,  1900,  p.  698;  and 
Martini's  comments  on  the  Russian- Japanese  war,  1 'Expulsion  des  Etrangers. 


Power  and  Methods. 


9 


in  time  of  peace  as  well  as  war  cannot  be  denied;  but 
whether  justifiable  or  not  would  depend  on  the  particular 
exigency.  “If,”  said  the  Supreme  Court,12  “the  Govern- 
ment of  the  United  States  through  its  legislative  depart- 
ment considers  the  presence  of  foreigners  of  a different 
race  in  this  country  who  are  not  assimilated  with  us,  to 
be  dangerous  to  its  peace  and  security,  their  exclusion 
is  not  to  be  stopped,  because  at  the  time  there  are  no 
actual  hostilities  with  the  nation  of  which  the  foreigners 
are  subjects.  The  existence  of  war  would  render  the  ne- 
cessity of  the  proceeding  only  more  obvious  and  pressing. 
The  same  necessity  in  a less  pressing  degree  may  arise 
when  war  does  not  exist,  and  the  same  authority  which 
adjudges  the  necessity  in  one  case  may  determine  it  in 
the  other.”  And  the  right  to  exclude  or  expel  all  aliens, 
absolutely  or  upon  certain  conditions,  in  war  or  in  peace, 
as  an  inherent  and  inalienable  right  of  every  sovereign 
nation,  essential  to  its  safety,  independence  and  welfare, 
has  received  the  unqualified  sanction  of  the  Supreme 
Court  of  the  United  States  in  later  decisions.13 

II.  Limitations  Imposed  by  International  Law  on  the 
Exercise  of  the  Right. 

Granting  that  the  right  to  exclude  or  expel  all  foreign- 
ers, or  any  class  of  foreigners,  absolutely  or  upon  certain 
conditions  in  war  or  in  peace  is,  inherently,  an  inalien- 
able right  of  every  sovereign  nation,  essential  to  its  safety, 
its  independence  and  its  welfare,14  and  that  the  control  of 
such  persons  and  the  right  to  expel  them  are  too  clearly 
within  the  essential  attributes  of  sovereignty  to  be  seri- 
ously contested,15  the  further  question  presents  itself  as  to 
whether,  under  the  law  which  concedes  the  existence  of 

i2Chae  Chan  Ping  v.  United  States,  130  U.  S.  531,  32  Law  Ed.  1068. 
isFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905;  United 
States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law  Ed.  979. 

14Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 
iBWharton  Int.  Law  Dig.,  par.  206. 


10  The  Exclusion  and  Expulsion  of  Aliens. 

the  power,  there  are  imposed  any  limitations  as  to  the 
methods  of  its  exercise ; the  term  “limitations”  being  used 
in  the  sense  of  restrictions  upon  the  exercise  thereof 
adopted  as  a matter  of  international  custom  based  upon 
the  recognized  expediency  existing  between  all  civilized 
nations,  and  supported  by  the  weight  of  authority. 

It  must  be  remembered  that  in  international  law  no 
foreigner  can  claim  the  right  of  entry  or  admission  to  a 
state.  But  if  the  state  throws  open  its  ports  to  the  en- 
trance of  foreigners,  welcomes  the  immigration  of.  persons 
of  an  alien  race  into  its  jurisdiction,  or  in  any  other  way 
invites  strangers  to  enter  its  territory,  there  results, 
under  international  law,  a duty,  self-imposed  upon  the 
state,  to  protect  and  to  vest  with  rights,  in  many  respects 
the  same  as  enjoyed  by  the  citizens  and  subjects  of  the 
state,16  all  aliens  who  may  enter  in  reliance  on  the  invi- 
tation extended.  But  in  entering  under  these  circum- 
stances, it  is  with  the  implied  condition  that  the  rights 
which  the  state  of  domicile  is  under  the  obligation 
to  protect  are  subject  to  limitation  or  restriction 
not  only  by  the  existing  municipal  law  of  the 
country  but  by  whatever  future  enactments  the 
legislative  department  may  provide.  At  the  same  time, 
as  stated  by  Sir  Robert  Phillimore,  “no  country  has  a 
right  to  set,  as  it  were,  a snare  for  foreigners;  therefore, 
conditions  hostile  to  their  interests  or  different  from  gen- 
eral usage  must  be  specifically  defined.”  17  Vattel  has  ex- 
pressed the  same  idea  in  stating  the  principle  that  “the 
sovereign  must  not  permit  access  into  his  territory  for 
the  purpose  of  luring  foreigners  into  a trap.”  Hence  the 
principle  that  the  right  of  expulsion,  if  exercised  at  all 
against  aliens  who  have  come  to  a country  having  good 
reason  to  believe  that,  as  to  them,  the  ordinary  procedure 
in  any  given  case,  sanctioned  by  the  civilized  countries 
of  the  world,  would  be  observed,  must  not  be  arbitrarily 

leLau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340. 

i7lnt.  Law,  Vol.  2,  chap  2. 


Power  and  Methods. 


11 


exercised.18  This  principle  is  generally  accepted  not  only 
by  European  and  Pan-American  publicists  and  by  the 
courts  of  this  country,  but  by  successive  secretaries  of  state 
in  passing  upon  the  question  as  to  whether  or  not  the  ex- 
pulsion of  American  citizens  from  foreign  states  was  ac- 
complished in  contravention  of  this  rule. 

“This  government/1  says  Mr.  Gresham,  Secretary  of 
State,  to  Mr.  Smyth,  Minister  to  Hayti,19  “does  not  pro- 
pose to  controvert  the  principle  of  international  law  which 
authorizes  every  individual  State  to  expel  objectionable 
foreigners  or  class  of  foreigners  from  its  territory.  The 
right  of  expulsion  or  exclusion  of  foreigners  is  one  which 
the  United  States,  as  well  as  many  other  countries  has, 
upon  occasion,  exercised  when  deemed  necessary  in  the 
interest  of  the  government  or  its  citizens.  But  this  right, 
although  based  upon  recognized  principles  of  interna- 
tional law,  has  limitations  which  the  same  principles 
impose.  ‘Every  state  is  authorized,  for  reasons  of  public 
order,  to  expel  foreigners  who  are  temporarily  residing  in 
its  territory.  But  when  a government  expels  a foreigner 
without  cause  and  in  an  injurious  manner,  the  state  of 
which  this  foreigner  is  a citizen  has  a right  to  prefer  a 
claim  for  this  violation  of  international  law,  and  to  de- 
mand satisfaction  if  there  is  occasion  for  it.1  ( Calvo,  Diet. 
Inter.  Law,  “Expulsion.11) There  is  certainly  noth- 

ing in  the  law  or  practice  of  this  country  which  can  be 
cited  as  a precedent  for  the  arbitrary  expulsion  of  for- 
eigners without  hearing  and  without  cause.  The  best  rule 
would  seem  to  be  that  no  nation  can  single  out  for  the  ex- 
pulsion from  its  territory  any  individual  citizen  of  a 
friendly  nation  without  special  and  sufficient  grounds 

isPradier  Fodere,  Traite  de  droit  international  public,  par.  1857 ; Rolin- 
Jaequemyns  Revue  du  Droit  Int.,  Yol.  20,  p.  489  ; Tehernoff,  Protection  des 
Naturaux  Residant  a l’Etranger,  p.  444  et  seq;  Calvo  Dictionnaire  du  Droit 
Int.  (Title  Expulsion);  Yon  Bar,  Journal  Droit  Int.  Prive,  Yol.  13,  p.  6; 
Heffter,  Yoelkerrecht,  Sec.  62;  Bluntschli,  Droit  Int.  Codifie,  Arts.  383-400. 

i»Foreign  Relations,  1895,  Vol.  II,  p.  801,  cited  in  Moore  Int.  Law  Dig, 
Yol.  IV,  p.  83. 


12  The  Exclusion  and  Expulsion  of  Aliens. 

therefor.  And  even  when  such  grounds  exist  the  exclusion 
should  be  effected  with  as  little  injury  to  the  individual 
and  his  property  interests  as  may  be  compatible  with  the 
safety  and  interests  of  the  country  which  expels  him. 
That  universal  sense  of  right  and  justice  which  suggests 
that  no  man  should  be  condemned  without  a hearing 
would  seem  to  require  that  the  person  singled  out  for  ex- 
pulsion should,  as  a general  rule,  first  be  notified  of  the 
charges  against  him  and  given  an  opportunity  to  refute 
them. 

To  again  quote  Pradier-Fodere : ‘Expulsion  is  legiti- 
mate only  so  far  as  it  is  demonstrated  with  evidence  that 
the  presence  of  those  whom  it  affects  imperils  the  peace 
within  or  without  the  security  of  the  governors  or  of  the 
governed;  that,  in  a word,  it  compromises  one  of  the  in- 
terests which  the  state  guards.  It  is  necessary  that  the 
danger  be  certain,  that  the  menace  be  effective;  the  ad- 
ministration should  not  recur  to  this  harsh  measure  except 
so  far  as  the  condition  of  the  individuals  who  are  the 
object  of  it  inspires  real  and  well-founded  disquietude 
either  in  the  inhabitants  of  the  country  or  in  the  govern- 
ment itself,  or  perhaps  even  in  a friendly  government. 
The  universal  conscience  protests  against  the  arbitrary 
use  of  the  right  of  expulsion.’  ” 20 

In  answering  the  question,  “In  what  manner  and  within 
what  limits  may  governments  exercise  the  right  of  expul- 
sion of  foreigners?”  Rolin-Jaequemyns  has  said: 21  “Every 
state  may  limit  the  admission  and  the  residence  of  foreign- 
ers upon  its  territory  by  such  conditions  as  it  deems  nec- 
essary. But  (he  adds)  there  is  another  consideration 
which  tends  not  to  annul,  but  to  restrain  this  exercise  of 
territorial  sovereignty.  The  individual  expelled  has  the 

2oMr.  Sherman,  Secretary  of  State,  to  Mr.  Powell,  min.  to  Hayti,  No.  94, 
Jan.  8th,  1898,  MS.  Inst.  Hayti,  III,  622,  cited  in  Moore  Int.  Law  Dig., 
Vol.  IV,  p.  91. 

2iRevue  de  Droit1  International,  Vol.  XX,  p.  498  et  seq.,  cited  in  Foreign 
Relations  of  the  United  States,  Part  II,  1895,  p.  776. 


Power  and  Methods. 


13 


double  quality  of  being  a man  and  a citizen  of  another 
state.  As  a human  being  he  has  the  right  to  be  exempt 
from  needless  harsh  treatment,  and  from  unjust  detriment 
to  his  interests;  in  his  quality  of  citizen  of  another  state 
he  has  the  right  to  invoke  the  protection  of  his  country 
against  unduly  rigorous  treatment  and  against  spoliation 
of  his  property.  The  act  of  expulsion  ought  to  conform  to 
its  direct,  essential  object,  which  is  to  relieve  the  soil  of 
an  obnoxious  guest.  The  right  of  national  sovereignty 
does  not  require  or  permit  more.  Generally  an  official 
order  to  leave  the  country  within  a specified  time  is  suf- 
ficient. If  not,  force  may  be  employed  But  forcible 
eviction  should  never  assume  a gratuitously  vexatious 
character.” 

This  view  was  relied  on  by  Mr.  Olney  in  a communica- 
tion sent  by  him  as  Secretary  of  State  to  Mr.  Young,  the 
United  States  minister  to  Guatemala  in  connection  with 
the  claim  of  J.  H.  Hollander,  who  had  been  expelled  from 
Guatemala  by  an  executive  decree  under  circumstances 
of  singular  and  unnecessary  harshness.  The  Guatemalan 
Government  had  expressed  the  view  that  it  “was  not  under 
obligation  to  allow  him  (Mr.  Young)  more  or  less  time 
to  get  out  of  the  country,  nor  to  accommodate  him  in  any 
way.  All  the  practices  of  international  jurisprudence  fall 
down  before  a law  clear  that  comes  immediately  from  the 
sovereignty  of  a nation.”  22  To  this  Secretary  Olney  re- 
plied; “The  logical  result  of  that  proposition  is,  that 
whatever  a state  by  legal  formula  wills  to  do,  it  may  do; 
and  that  international  law  obligations  are  annulled,  not 
infringed,  by  legalized  administrative  action  in  contra- 
vention of  those  obligations I construe  the  language 

used  to  mean  that,  as  a rule  of  international  law  the  right 
to  expel  is  absolute  and  inherent  in  the  sovereignty  of  a 
state,  and  that  no  other  state  can  question  the  exercise 
of  this  right  nor  the  manner  of  exercising  it The 

22Foreign  Relations  of  the  United  States,  ante ; Venezuelan  Arbitrations 
of  1903 — Ralston’s  Report,  p.  700. 


14  The  Exclusion  and  Expulsion  of  Aliens. 

modern  theory  and  practice  of  Christian  nations  is  be- 
lieved to  be  founded  on  the  principle  that  the  expulsion  of 
a foreigner  is  justifiable  only  when  his  presence  is  detri- 
mental to  the  welfare  of  the  state,  and  that  when  expul- 
sion is  resorted  to  as  an  extreme  police  measure  it  is  to 
be  accomplished  with  due  regard  to  the  convenience  and 
the  personal  and  property  interests  of  the  person  expelled.” 

The  conclusion  to  be  drawn  from  the  authorities  above 
referred  to  is  that  while  a sovereign  state  has  an  absolute 
right  to  exclude  or  expel  any  or  all  foreigners  from  its 
jurisdiction  either  in  time  of  peace  or  war,  a nation  which 
exercises  either  right  in  an  arbitrary  or  unjust  manner 
may  render  itself  thereby  liable  to  a demand  for  satisfac- 
tion on  the  part  of  the  state  whose  national  has  been 
thus  expelled  or  excluded. 

III.  The  Exercise  of  the  Power  in  the  United  States. 

A.  In  General. 

It  has  been  previously  pointed  out23  that  international 
law  confers  no  right  upon  the  citizen  or  subject  of  one 
nation  to  enter  the  territory  of  a foreign  sovereign;  but 
that,  the  permission  being  once  granted,  his  situation 
within  such  foreign  jurisdiction  as  a domiciled  alien,  or 
even  as  a transient,  vests  in  him,  generally  speaking,  and 
for  the  time  being,  the  same  civil  rights  which  the  na- 
tionals of  the  country  of  domicile  possess.  “By  general 
international  law,”  said  Chief  Justice  Fuller,24  “for- 
eigners who  have  become  domiciled  in  a country  other 
than  their  own  acquire  rights  and  must  discharge  duties 
in  many  respects  the  same  as  possessed  by  and  imposed 
upon  the  citizens  of  that  country.”  At  the  same  time  the 
alien  is  presumed  to  enter  with  the  knowledge  that  pre- 
cisely because  of  the  fact  of  his  alienage  he  may  be  sub- 

23  Ante,  p.  10. 

24Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  2J6  Law  Ed.  340. 


Power  and  Methods. 


15 


jected  to  municipal  laws  and  regulations  peculiarly  ap- 
plicable to  him  and  all  others  of  the  class  of  which  he  is 
a member,  which  may  result  in  imposing  upon  him  bur- 
dens to  which  the  native  residents  of  the  country  are  not 
subjected.  In  fact  the  only  limitation  upon  municipal 
legislation  affecting  aliens  may  be  said  to  consist  in  that 
it  must  not  be  arbitrary  or  purely  capricious  in  nature,  or 
directed  towards  him  or  those  in  a similar  situation  merely 
because  they  happen  to  belong  to  a particular  nation. 
But  this  principle  does  not  operate  to  exempt  aliens  from 
the  effect  of  municipal  regulations  made  applicable  to  them 
as  members  of  a particular  class,  even  though  the  members 
of  that  class  happen  to  belong  to  one  particular  nation, 
provided  that  the  methods  adopted  by  the  administration 
are  put  in  force  with  the  honest  object  of  safeguarding 
the  interests  of  the  nation  and  of  its  citizens. 

In  the  United  States  the  power  to  prohibit  the  entrance 
of  foreigners  into  its  dominions,  or  to  admit  them  only  in 
such  cases  and  upon  such  conditions  as  Congress  may  see 
fit  to  prescribe,  even  though  they  seek  admission  for  the 
purpose  of  transit  only,25  is  vested  in  the  National  Govern- 
ment to  which  the  Constitution  has  committed  the  en- 
tire control  of  international  relations  in  peace  as  well  as 
in  war.  And,  as  Congress  may  admit  some  and  exclude 
others,  so  may  it  expel  aliens  of  a certain  class  and  allow 
others  to  remain.  Thus,  the  Act  of  November  3,  1893, 26 
which  provided  for  the  extension  in  favor  of  Chinese  per- 
sons generally — but  not  in  favor  of  Chinese  felons — of  the 
period  in  which  Chinese  residing  in  the  United  States 
might  register  was  unhesitatingly  held  constitutional;27 
and  it  is  needless  to  add  that  the  power  to  regulate  the  con- 
ditions on  which  aliens  may  enter  or  remain  includes  the 
power  to  designate  the  ports  of  entry28  and  to  prescribe 

25Fok  Young  Yo  v.  United  States,  185  U.  S.  296,  46  Law  Ed.  917. 

2628  Stat.  at  L.  7. 

27United  States  v.  Chew  Cheong,  61  Fed.  200. 

28 Ex  parte  Li  Dick,  174  Fed.  674. 


16  The  Exclusion  and  Expulsion  of  Aliens. 

the  conditions  under  which  deportation  is  to  be  effected.29 
In  the  United  States  this  power  is  vested  in  the  political 
department  of  the  Government  and  may  be  exercised  either 
through  treaties  made  by  the  President  or  through  statutes 
enacted  by  Congress.30  “The  sound  construction  of  the 
Constitution,”  said  Mr.  Justice  Gray,31  “must  allow  to  the 
National  Legislature  that  discretion,  with  respect  to  the 
means  by  which  the  powers  it  confers  are  to  be  carried  into 
execution,  which  will  enable  that  body  to  perform  the 
high  duties  assigned  to  it,  in  the  manner  most  beneficial  to 
the  people.” 

The  source  of  the  power  of  Congress  to  make  provisions 
concerning  the  admission  or  exclusion  of  aliens  is  twofold : 
first,  as  the  mouthpiece  of  the  United  States  in  its  capacity 
as  a sovereign  state  among  the  family  of  nations ; second, 
the  power  to  regulate  foreign  commerce  conferred  upon  it 
by  section  8 of  Article  I of  the  Constitution  of  the  United 
States.32 

Said  the  Supreme  Court : 83  “Whether  rested  on  the  ac- 
cepted principles  of  international  law  that  every  sovereign 
nation  has  the  power  as  inherent  in  sovereignty  essential 
to  self-preservation  to  forbid  the  entrance  of  foreigners 
within  its  domain,  or  to  admit  them  only  in  such  cases 
and  on  such  conditions  as  it  may  see  fit  to  prescribe,  or 
on  the  power  to  regulate  commerce  with  foreign  nations 
which  includes  the  entrance  of  ships,  the  importation  of 
goods,  and  the  bringing  of  persons  into  the  United  States, 
the  act  before  us  is  not  open  to  constitutional  objection” — 

29Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721;  Lees  v.  United 
States,  150  U.  S.  476,  37  Law  Ed.  1150;  Ekiu  v.  United  States,  142  U.  S. 
651,  35  Law  Ed.  1146;  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  32 
Law  Ed.  1068. 

30Ekiu  v.  United  States,  supra. 

siFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905,  quot- 
ing Chief  Justice  Marshall  in  McCullough  v.  Maryland. 

32Head  Money  Cases,  112  U.  S.  580,  28  Law  Ed.  798;  Ekiu  v.  United 
States,  142  U.  S.  651,  35  Law  Ed.  1156. 

33United  States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law  Ed. 
979. 


Powee  and  Methods. 


17 


and  held  that  the  Act  of  1903, 84  which  prohibited  the  en- 
trance into  the  United  States  of  alien  anarchists,  and  pro- 
vided that  the  question  of  whether  the  person  seeking  ad- 
mission into  the  country  was  in  fact  both  an  alien  and  an 
anarchist  might  be  finally  determined  by  executive  officers, 
was  constitutional. 

While  the  principle  is  maintained  that  any  alien  per- 
mitted to  enter  a foreign  country  may  claim  as  of  right 
the  privileges  conferred  by  the  municipal  laws  thereof — 
in  other  words  the  constitutional  provisions  and  statutory 
enactments  in  force  therein — this  principle  applies  to  its 
full  extent  only  in  cases  where  the  alien  has  actually  law- 
fully entered  and  settled  in  the  country  for  the  purpose  of 
establishing  his  domicile  therein,  provided  furthermore 
that  he  does  not  belong  to  or  become  a member  of  a class 
subject  to  the  operation  of  deportation  proceedings  either 
through  his  own  act  or  by  any  act  of  the  national  legisla- 
ture. It  follows  that  when  an  alien  member  of  a class  ad- 
mission to  which  is  prohibited  by  the  laws  of  the  state,  is 
prevented  from  effecting  an  entrance  within  its  borders, 
the  principle  does  not  apply.  No  rights  conferred  either 
by  the  constitution  or  by  the  municipal  law  of  the  country 
of  projected  domicile,  which  can  be  claimed  only  on  the 
theory  of  temporary  allegiance  in  return  for  temporary 
protection,  can  be  invoked  where,  by  the  very  fact  of  re- 
fusing to  admit  him,  the  state  denies  him  that  protection 
and  refuses  the  proffered  offer  of  allegiance.  At  the  same 
time  it  must  be  admitted  that,  being  within  the  jurisdic- 
tion of  the  rejecting  state,  the  alien  is  for  the  time  being 
at  least,  and  in  partial  measure,  subject  to  the  provisions 
of  the  laws  of  the  state  both  for  the  purpose  of  protection, 
and  for  the  purpose  at  least  of  criminal  liability.  But  it 
is  equally  true,  and  it  seems  equally  clear,  that  a foreigner 
so  situated  cannot  generally  invoke  rights  conferred  either 
by  the  Constitution  or  by  the  municipal  laws  of  the  state 


3432  Stat.  at  L.,  Pt.  I,  p.  1213. 


18  The  Exclusion  and  Expulsion  of  Aliens. 

which  were  conferred  with  the  obvious  purpose  of  apply- 
ing to  persons  normally  within  the  sphere  of  operation  of 
such  Constitution  or  laws.  Granting  the  existence  of 
such  laws  governing  the  subject  of  aliens  and  covering  the 
situation  most  frequently  presented — that  of  an  alien  re- 
fused admission  and  awaiting  deportation  in  accordance 
with  those  laws — since  the  latter  in  turn  depend  for  their 
validity  if  enacted  under  a constitutional  form  of  govern- 
ment, on  the  provisions  of  the  paramount  law,  it  is  ap- 
parent that  in  so  far  as  the  constitutional  prohibition  may 
apply  to  his  case,  the  alien  is  entitled  to  their  protection. 
But  it  is  equally  true  that  the  mere  fact  of  being  within 
the  territorial  limits  of  the  United  States,  and  for  certain 
purposes  within  the  jurisdiction  of  its  courts,  confers  upon 
the  alien  no  right  to  invoke  each  and  every  guarantee  of 
the  Federal  Constitution,  in  support  of  an  alleged  right  to 
enter.35  “He  does  not  become,”  said  the  court  in  the  case 
of  Turner  v.  Williams,36  “one  of  those  people  to  whom 
these  things  are  secured  by  the  Constitution  by  an  ab 
tempt  to  enter  forbidden  by  law.  To  appeal  to  the  Constitu- 
tion is  to  concede  that  this  is  a land  governed  by  that  su- 
preme law,  and  as  under  it  the  power  to  exclude  has  been 
determined  to  exist,  those  who  are  excluded  cannot  assert 
the  rights  in  general  obtaining  in  a land  to  which  they  do 
not  belong  as  citizens  or  otherwise.”  Aliens  in  this  situa- 
tion are  considered,  so  far  as  their  right  to  invoke  the 
constitutional  guarantees  is  concerned,  to  be  in  the  same 
position,  although  physically  within  the  boundaries  of  the 
United  States,  as  if  they  had  been  stopped  at  the  limits  of 
the  jurisdiction  of  this  country  and  kept  there  while  their 
right  to  enter  is  in  process  of  determination  ;37  and  the  act 
itself  provides  that  the  mere  fact  of  their  detention  for 

35 Ex  parte  Lung  Wing  Wun,  161  Fed.  211;  Wong  Song  v.  United 
States,  144  Fed.  968. 

36194  U.  S.  279,  48  Law  Ed.  979. 

37United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  Ekiu  v.  United 
States,  142  U.  S.  651,  35  Law  Ed.  1146. 


Power  and  Methods. 


19 


the  purpose  of  investigation  and  examination  shall  not  be 
deemed  to  constitute  a landing,38  thus  following  the  gen- 
eral trend  of  judicial  decision.39  It  has  been  held 
that  a Chinese  alien  seeking  admission  to  this  coun- 
try may  invoke  the  constitutional  guarantees  against  un- 
reasonable and  unlawful  searches  and  seizures  when  his 
personal  letters  and  papers  have  been  seized  unlawfully 
by  custom  officials  at  the  port  of  entry,  in  order  to  prevent 
the  contents  of  such  letters  and  papers  being  used  against 
him.40  This,  however,  has  been  denied  in  a recent  Federal 
case;41  and  the  Supreme  Court  of  the  United  States  has 
held  in  a case  in  which  it  was  alleged  by  a Chinese  person 
seeking  to  enter  the  United  States  that  on  his  arrival  his 
baggage  and  private  papers  were  opened  and  his  person 
searched  by  customs  inspectors,  that  if  the  petitioner  had 
just  cause  of  complaint  of  the  conduct  of  the  collector’s 
subordinates  the  remedy  was  not  to  be  found  in  his  dis- 
charge on  habeas  corpus.*2 

The  principle  above  set  forth  applies  with  equal  force 
to  the  case  of  aliens  who  are  expelled  within  the  statutory 
period  fixed  by  the  Immigration  Act,  on  the  ground  of 
being  unlawfully  in  the  United  States.  The  Act  of  March 
26,  1910, 43  provides  that  certain  persons  leading  immoral 
lives,  or  maintaining  connections  with  persons  so  ad- 
dicted of  so  questionable  a character  as  to  make  their 
presence  undesirable  in  the  United  States,  may  be  de- 
ported at  any  time  after  entry,  even  though  they  may  have 
been  duly  admitted  in  the  first  instance.  But  in  the  vast 
majority  of  cases  the  ground  of  deportation  is  that  the 
alien  has  entered  the  United  States  in  violation  of  law. 
It  seems  plain  that  persons  found  to  have  obtained  admis- 

ssSection  16,  Act  of  Feb.  20,  1907. 

39In  re  Palagano,  38  Fed.  580. 

^United  States  v.  Wong  Quong  Wong,  94  Fed.  832. 

In  re  Chin  Wah,  182  Fed.  256. 

42Fok  Young  Yo  v.  United  States,  185  U.  S.  296,  46  Law  Ed.  917  j Lee 
Gon  Yung  v.  United  States,  185  U.  S.  306,  46  Law  Ed.  921. 

4336  Stat.  at  L.  263. 


20  The  Exclusion  and  Expulsion  of  Aliens. 

sion  into  the  United  States  by  setting  at  naught  all  the 
regulations  of  the  municipal  law  adopted  with  regard  to 
them  can  scarcely  hope  to  invoke  successfully  the  inter- 
national law  principle  before  stated,  to  the  effect  that, 
having  become  residents  of  the  United  States,  their  civil 
rights  are  to  be  measured  by  those  of  the  rest  of  the  com- 
munity. That  principle  is  based  on  the  assumption  that 
the  sovereign  has  actually  voluntarily  extended  his  pro- 
tection to  the  alien  who  avails  himself  of  the  offer;  and 
that  by  having  done  so  the  state  is  bound  to  concede  to 
the  foreigner  civil  rights  and  privileges  enjoyed  by  its 
own  nationals.  But  the  state  cannot  be  said  voluntarily  to 
extend  its  protection  to  persons  who  seek  it  in  violation  of 
the  expressed  law  of  the  state ; and  it  is  apparent  that  no 
state  is  under  the  obligation  to  accept  the  allegiance  of  a 
person  or  class  of  persons  barred  from  its  domains.  It 
follows  that  the  mere  fact  of  unlawful  residence  cannot 
support  the  right  to  invoke  the  laws  or  Constitution  of 
the  state  in  proceedings  which  of  themselves  constitute  the 
outward  manifestation  of  the  state’s  refusal  to  continue 
to  accept  that  temporary  allegiance  which  residence 
within  the  dominions  of  the  sovereign,  unlawful  though  it 
may  be,  necessarily  implies. 

As  far  as  invoking  those  rights  in  such  proceedings  is 
concerned,  the  alien  is  merely  in  the  position  of  an  undesir- 
able stranger  in  the  process  of  being  excluded  from  the 
enjoyment  of  those  privileges  of  protection  which  the  na- 
tion has  the  power  to  bestow.  “The  power  to  exclude  or 
expel  aliens,”  says  the  Supreme  Court,  “being  a power 
affecting  international  relations,  is  vested  in  the  political 
departments  of  the  Government  and  is  to  be  regulated  by 
treaties  or  by  acts  of  Congress,  and  to  be  executed  by  the 
executive  authority  according  to  the  regulations  so  estab- 
lished except  so  far  as  the  judiciary  has  been  authorized 
by  treaty  or  by  statute  or  is  required  by  the  paramount  law 


Power  and  Methods. 


21 


of  the  Constitution,  to  intervene.44  The  extent  to  which 
either  high  contracting  party  to  a treaty  dealing  with  the 
subject  of  immigration  or  the  exclusion  or  expulsion  of 
aliens  may  regulate  the  admission  of  nationals  of  the 
other  into  its  territory  necessarily  depends  on  the  stipula- 
tions mutually  agreed  upon. 

The  only  limitation  upon  the  method  prescribed  by  the 
municipal  law — in  the  United  States  Acts  of  Congress  or 
Presidential  proclamations  promulgated  under  the  au- 
thority of  Congress — is  that  they  must  not  violate  the 
fundamental  principles  of  the  Federal  Constitution.  And 
it  may  be  stated  that  while  prior  treaty  provisions  on  the 
subject  are  in  no  way  binding  on  subsequent  legislation  by 
Congress  in  the  sense  that  the  national  legislature  cannot 
in  the  exercise  of  its  sovereign  powers  enact  laws  different 
in  purpose  and  effect  from  pre-existing  treaty  stipulations, 
these  stipulations  will  be  regarded  by  the  courts  as  bind- 
ing upon  the  nation  unless  the  provisions  of  the  law  are 
such  as  to  show  clearly  and  unequivocally  the  purpose 
to  supersede  and  abrogate  the  articles  of  the  treaty. 

B.  Regulation  of  Immigration  by  Treaty. 

1.  The  Treaties  with  China . 

(A.)  The  Treaty  of  November  17,  1880. 

The  first  attempt  made  by  the  United  States  to  regulate 
by  national  agreement  the  immigration  into  this  country 
of  subjects  of  a friendly  power  took  the  form  of  the  Immi- 
gration Treaty  between  the  United  States  and  China,  con- 
cluded on  November  17,  1880,  and  proclaimed  October  5, 
1881.  Nowhere  is  there  to  be  found,  perhaps,  a more  con- 
cise and  at  the  same  time  more  comprehensive  statement 
of  the  treaties  into  which  the  two  countries  had  entered  up 

44Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905;  Fok 
Young  Yo  v.  United  States,  185  U.  S.  296,  46  Law  Ed.  917. 


22  The  Exclusion  and  Expulsion  of  Aliens. 

to  that  time,  than  in  the  decision  rendered  by  Mr.  Justice 
Field,  in  the  case  of  Chae  Chan  Ping  v.  The  United 
States.45 

“The  first  treaty  between  the  United  States  and  the 
Empire  of  China,”  says  the  court,  “was  concluded  on  the 
3d  of  July,  1844,  and  ratified  in  December  of  the  follow- 
ing year.  (8  Stat.  at  L.  592.)  Previous  to  that  time  there 
had  been  an  extensive  commerce  between  the  two  nations, 
that  to  China  being  confined  to  a single  port.  It  was  not, 
however,  attended  by  any  serious  disturbances  between 
our  people  there  and  the  Chinese.  In  August,  1842,  as  the 
result  of  a war  between  England  and  China,  a treaty  was 
concluded  stipulating  for  peace  and  friendship  between 
them,  and,  among  other  things,  that  British  subjects,  with 
their  families  and  their  establishments,  should  be  allowed 
to  reside  for  the  purpose  of  carrying  on  mercantile  pur- 
suits at  the  five  principal  ports  of  the  Empire.  ( Hertslet’s 
Commercial  Treaties,  Yol.  6,  221.)  Actuated  by  a desire 
to  establish  by  treaties  friendly  relations  between  the 
United  States  and  the  Chinese  Empire,  and  to  secure  to 
our  people  the  same  commercial  privileges  which  had  been 
thus  conceded  to  British  subjects,  Congress  placed  at  the 
disposal  of  the  President  the  means  to  enable  him  to  es- 
tablish future  commercial  relations  between  the  two  coun- 
tries ‘on  terms  of  national  equal  reciprocity.’  (Act  of 
March,  1843,  Chap.  90,  5 Stat.  at  L.  624. ) A mission  was 
accordingly  sent  to  China,  at  the  head  of  which  was  placed 
Mr.  Caleb  Cushing,  a gentleman  of  large  experience  in 
public  affairs.  He  found  the  Chinese  government  ready  to 
concede  by  treaty  to  the  United  States  all  that  had  been 
reluctantly  yielded  to  England  through  compulsion.  As 
the  result  of  his  negotiations  the  treaty  of  1844  was  con- 
cluded. It  stipulated  among  other  things,  that  there 
should  be  a ‘perfect,  permanent,  and  universal  peace,  and 
a sincere  and  cordial  amity’  between  the  two  nations ; that 
the  five  principal  ports  of  the  Empire  should  be  opened  to 
the  citizens  of  the  United  States,  who  should  be  permitted 
to  reside  with  their  families  and  trade  there,  and  to  pro- 
ceed with  their  vessels  and  merchandise  to  and  from  any 
foreign  port  and  either  of  said  five  ports ; and  while  peace- 
ably attending  to  their  affairs  should  receive  the  protec- 

45130  U.  S.  581,  32  Law  Ed.  1068. 


Power  and  Methods. 


23 


tion  of  the  Chinese  authorities.  (Senate  Doc.  No.  138, 
28  Cong.  2d  Sess.) 

The  treaty  between  England  and  China  did  not  have  the 
effect  of  securing  permanent  peace  and  friendship  between 


those  countries In  1856  the  two  countries  were  at 

open  war As  the  rights  of  citizens  of  the  United 


States  might  be  seriously  affected  by  the  results  of  exist- 
ing hostilities  and  commercial  intercourse  between  the 
United  States  and  China  be  disturbed,  it  was  deemed  ad- 
visable to  send  to  China  a minister  plenipotentiary  to  rep- 
resent our  government  and  to  watch  our  interests  there. 
Accordingly  Mr.  William  B.  Keed,  of  Philadelphia  was  ap- 
pointed such  minister,  and  instructed,  whilst  abstaining 
from  any  direct  interference,  to  aid  by  peaceful  co-opera- 
tion the  objects  the  allied  forces  (Great  Britain  and 
France)  were  seeking  to  accomplish.  (Senate  Doc.  47, 
35th  Cong.,  1st  Sess.)  Through  him  a new  treaty  was  ne- 
gotiated for  the  Chinese  government.  It  was  concluded 
in  June,  1858,  and  ratified  in  August  of  the  following  year. 
(12  Stat.  at  L.  1023.)  It  reiterated  the  pledges  of  peace 
and  friendship  between  the  two  nations,  renewed  the  prom- 
ise of  protection  to  all  citizens  of  the  United  States  in 
China  peaceably  attending  to  their  own  affairs,  and  stipu- 
lated for  security  for  Christians  in  the  profession  of  their 
religion.  Neither  the  treaty  of  1844  nor  that  of  1858 
touched  upon  the  migration  and  emigration  of  the  citizens 
and  subjects  of  the  two  nations  respectively  from  one  coun- 
try to  the  other.  But  in  1868  a great  change  in  the  rela- 
tions of  the  two  nations  was  made  in  that  respect.  In  that 
year  a mission  from  China,  composed  of  distinguished 
functionaries  of  that  Empire,  came  to  the  United  States 
with  the  professed  object  of  establishing  closer  relations 
between  the  two  countries  and  their  people.  At  its  head 
was  placed  Mr.  Anson  Burlingame,  an  eminent  citizen  of 
the  United  States,  who  had  at  one  time  represented  this 
country  as  Commissioner  to  China.  He  resigned  his  office 
under  our  Government  to  accept  the  position  tendered  to 

him  by  the  Chinese  government On  its  arrival  in 

Washington,  additional  articles  to  the  treaty  of  1858  were 
agreed  upon,  which  gave  expression  to  the  general  desire 
that  the  two  nations  and  their  peoples  should  be  drawn 
closer  together.  The  new  articles,  eight  in  number,  were 
agreed  to  on  the  28th  of  July,  1868,  and  ratifications  of 


24  The  Exclusion  and  Expulsion  of  Aliens. 

them  were  exchanged  at  Pekin  in  November  of  the  fol- 
lowing year.  (16  Stat.  at  L.  739.)  Of  these  articles,  the 
fifth,  sixth  and  seventh,  are  as  follows : 

‘Article  5.  The  United  States  and  the  Emperor  of  China 
cordially  recognize  the  inherent  and  inalienable  right  of 
man  to  change  his  home  and  allegiance,  and  also  the 
mutual  advantage  of  the  free  migration  and  emigration  of 
their  citizens  and  subjects  respectively  from  the  one  coun- 
try to  the  other  for  the  purpose  of  curiosity,  or  trade,  or  as 
permanent  residents.  The  high  contracting  parties,  there- 
fore, join  in  reprobating  any  other  than  an  entirely  volun- 
tary emigration  for  these  purposes.  They  consequently 
agree  to  pass  laws  making  it  a penal  offence  for  a citizen 
of  the  United  States,  or  Chinese  subjects  to  take  Chinese 
subjects  either  to  the  United  States  or  to  any  other  foreign 
country,  or  for  a Chinese  subject  or  citizen  of  the  United 
States  to  take  citizens  of  the  United  States  to  China  or  to 
any  other  foreign  country  without  their  free  and  volun- 
tary consent,  respectively. 

‘Article  6.  Citizens  of  the  United  States  visiting  or  re- 
siding in  China  shall  enjoy  the  same  privileges,  immunities 
or  exemptions  in  respect  to  travel  or  residence  as  may 
there  be  enjoyed  by  the  citizens  or  subjects  of  the  most 
favored  nation ; and  reciprocally,  Chinese  subjects  visiting 
or  residing  in  the  United  States  shall  enjoy  the  same  privi- 
leges, immunities,  and  exemptions  in  respect  to  travel  or 
residence  as  may  there  be  enjoyed  by  the  citizens  or 
subjects  of  the  most  favored  nation.  But  nothing  herein 
contained  shall  be  held  to  confer  naturalization  upon  citi- 
zens of  the  United  States  in  China,  nor  upon  the  subjects 
of  China  in  the  United  States. 

‘Article  7.  Citizens  of  the  United  States  shall  enjoy  all 
the  privileges  of  the  public  educational  institutions,  under 
the  control  of  the  government  of  China ; and,  reciprocally, 
Chinese  subjects  shall  enjoy  all  the  privileges  of  the  public 
educational  institutions  under  the  control  of  the  Govern- 
ment of  the  United  States,  which  are  enjoyed  in  the  re- 
spective countries  by  the  citizens  or  subjects  of  the  most 
favored  nation.  The  citizens  of  the  United  States  may 
freely  establish  and  maintain  schools  within  the  Empire 
of  China  at  those  places  where  foreigners  are  by  treaty 
permitted  to  reside;  and  reciprocally,  Chinese  subjects 


Power  and  Methods. 


25 


may  enjoy  the  same  privileges  and  immunities  in  the 
United  States.’ 

The  previous  treaties  of  1844  and  1858  were  con- 
fined principally  to  mutual  declarations  of  peace  and 
friendship,  and  to  stipulations  for  commercial  intercourse 
at  certain  ports  in  China  and  for  protection  to  our  citi- 
zens whilst  peaceably  attending  to  their  affairs.  It  was 
not  until  the  additional  articles  of  1868  were  adopted  that 
any  public  declaration  was  made  by  the  two  nations  that 
there  were  advantages  in  the  free  migration  or  emigration 
of  their  citizens  and  subjects  respectively  from  one  country 
to  the  other;  and  stipulations  given  that  each  should 
enjoy  in  the  country  of  the  other,  with  respect  to  travel 
or  residence,  the  ‘privileges,  immunities,  and  exemptions’ 
enjoyed  by  citizens  and  subjects  of  the  most  favored  na- 
tion  ” 

After  pointing  out  that  the  discovery  of  gold  in  Cali- 
fornia in  1849  was  followed  by  a large  immigration  thither 
from  all  parts  of  the  world,  and  particularly  China,  which 
gave  rise  to  a competition  between  Chinese  immigrants  of 
the  laboring  class  and  our  people,  which  soon  assumed 
proportions  dangerous  to  the  public  peace,  and  after  re- 
ferring to  the  petition  for  protective  legislation  presented 
by  the  people  of  California  which  took  the  form  of  a me- 
morial submitted  to  Congress  in  February,  1879,  the  Court 
proceeds : 

“So  urgent  and  constant  were  the  prayers  for  relief 
against  existing  and  anticipated  evils,  both  from  the  public 
authorities  of  the  Pacific  coast  and  from  private  indi- 
viduals, that  Congress  was  compelled  to  act  on  the  subject. 
Many  persons,  however,  both  in  and  out  of  Congress  were 
of  opinion  that  so  long  as  the  treaty  remained  unmodified, 
legislation  restricting  immigration  would  be  a breach  of 
faith  with  China.  A statute  was  accordingly  passed  ap- 
propriating money  to  send  commissioners  to  China  to  act 
with  our  minister  there  in  negotiating  and  concluding  by 
treaty  a settlement  of  such  matters  of  interest  between  the 
two  Governments  as  might  be  confided  to  them.  (21  Stat. 
at  L.  133,  chap.  88. ) Such  commissioners  were  appointed 
and  as  the  result  of  their  negotiations,  the  Supplementary 


26 


The  Exclusion  and  Expulsion  of  Aliens. 


Treaty  of  November  17th,  1880,  was  concluded  and  ratified 
in  May  of  the  following  year.  (22  Stat.  at  L.  826.)” 

This  treaty  contains  four  articles,  which  read  as  fol- 
lows: 

Article  I. 

Whenever  in  the  opinion  of  the  Government  of  the 
United  States,  the  coming  of  Chinese  laborers  to  the 
United  States,  or  their  residence  therein,  affects  or  threat- 
ens to  affect  the  interests  of  that  country,  or  to  endanger 
the  good  order  of  the  said  country  or  of  any  locality  within 
the  territory  thereof,  the  Government  of  China  agrees  that 
the  Government  of  the  United  States  may  regulate,  limit, 
or  suspend  such  coming  or  residence,  but  may  not  abso- 
lutely prohibit  it.  The  limitation  or  suspension  shall  be 
reasonable  and  shall  apply  only  to  Chinese  who  may  go 
to  the  United  States  as  laborers,  other  classes  not  being 
included  in  the  limitations.  Legislation  taken  in  regard  to 
Chinese  laborers  will  be  of  such  a character  only  as  is 
necessary  to  enforce  the  regulation,  limitation  or  suspen- 
sion of  immigration,  and  immigrants  shall  not  be  subject 
to  personal  maltreatment  or  abuse. 

Article  II. 

Chinese  subjects,  whether  proceeding  to  the  United 
States  as  teachers,  students,  merchants,  or  from  curiosity, 
together  with  their  body  and  household  servants,  and 
Chinese  laborers  who  are  now  in  the  United  States  shall  be 
allowed  to  go  and  come  of  their  own  free  will  and  accord, 
and  shall  be  accorded  all  the  rights,  privileges,  immunities 
and  exemptions  which  are  accorded  to  the  citizens  and  sub- 
jects of  the  most  favored  nation. 

Article  III. 

If  Chinese  laborers,  or  Chinese  of  any  other  class,  now 
either  permanently  or  temporarily  residing  in  the  territory 
of  the  United  States,  meet  with  ill  treatment  at  the  hands 
of  any  other  persons,  the  Government  of  the  United  States 
will  exert  all  its  power  to  devise  measures  for  their  pro- 
tection and  to  secure  to  them  the  same  rights,  privileges, 
immunities  and  exemptions  as  may  be  enjoyed  by  the  citi- 
zens or  subjects  of  the  most  favored  nation  and  to  which 
they  are  entitled  by  treaty. 


Power  and  Methods. 


27 


Article  IV. 

The  high  contracting  powers  having  agreed  upon  the 
foregoing  articles,  whenever  the  Government  of  the  United 
States  shall  adopt  legislative  measures  in  accordance 
therewith,  such  measures  will  be  communicated  to  the 
Government  of  China.  If  the  measures  as  enacted  are 
found  to  work  hardship  upon  the  subjects  of  China,  the 
Chinese  minister  at  Washington  may  bring  the  latter  to 
the  notice  of  the  Secretary  of  State  of  the  United  States 
who  will  consider  the  subject  with  him;  and  the  Chinese 
Foreign  Office  may  also  bring  the  matter  to  the  notice  of 
the  United  States  minister  at  Peking  and  consider  the 
subject  with  him  to  the  end  that  mutual  and  unqualified 
benefit  may  result 

In  commenting  on  the  purpose  and  effect  of  the  treaty 
of  Nov.  17,  1880,  the  Supreme  Court  in  an  early  case46  ex- 
pressed itself  as  follows : “By  the  treaty  of  1868  subjects 
of  China  were  entitled  without  restriction  to  come  to  this 
country  for  purposes  of  curiosity  or  trade  or  as  perma- 
nent residents.  But  in  deference  to  the  opinion  of  our 
Government  that  the  presence  of  Chinese  laborers  might 
be  injurious  to  the  public  interests,  or  might  endanger 
good  order  in  our  land,  China  agreed  in  the  treaty  of  1880, 
to  such  modifications  of  previous  treaties  as  would  enable 
the  United  States  to  regulate,  limit  or  suspend  their  com- 
ing or  residence  without  absolutely  prohibiting  it;  such 
limitation  or  suspenson  to  be  reasonable  in  its  character. 
As  to  certain  classes  of  Chinese  it  was  distinctly  provided 
that  they  should  be  permitted  to  go  and  come  of  their  own 
free  will,  and  be  accorded  all  the  rights,  privileges,  im- 
munities and  exemptions  that  are  granted  to  citizens  and 
subjects  of  the  most  favored  nation.  Those  classes  were : 
(1st)  Chinese  subjects  whether  proceeding  to  the  United 
States  as  teachers,  students,  merchants,  or  from  curiosity, 
together  with  their  body  and  household  servants.  (2d) 
Chinese  laborers  who  were  in  this  country  at  the  date  of 
the  treaty.  Upon  the  exercise,  by  these  particular  classes, 
«Chew  Heong  v.  United  States,  112  U.  S.  536,  28  Law  Ed.  770. 


28 


The  Exclusion  and  Expulsion  of  Aliens. 


of  the  rights  of  free  ingress  and  egress,  no  limitation  in 
respect  of  time  was  imposed  by  the  treaty ; in  other  words, 
the  enjoyment  of  the  right  to  go  and  come  was  not  made 
to  depend  upon  how  often  they  went  out  of  the  country 
nor  how  long  they  remained  away  before  returning.”  The 
government  contended  in  this  case  that  a Chinese  laborer 
domiciled  in  the  United  States  but  temporarily  absent 
when  the  treaty  went  into  effect  could  claim  no  right  to 
re-enter  thereunder  in  the  absence  of  the  certificate  on 
which  the  right  of  members  of  the  laboring  class  to  enter 
was  made  to  depend  by  the  Act  of  1882 ; and  it  was  implied 
in  argument  that  in  the  judgment  of  Congress  the  treaty 
did  not  secure  to  any  Chinese  laborer  the  right  of  going 
and  coming  of  his  own  free  will,  except  to  those  in  this 
country  at  the  date  of  the  treaty  who  remained  here  con- 
tinuously until  the  Act  of  1882,  enacted  for  the  avowed 
purpose  of  faithfully  executing  the  treaty,47  was  passed. 
The  court  said : “But  the  treaty  is  not  subject  to  any  such 
interpretation.  To  give  it  that  interpretation  would  be, 
in  effect,  to  interpolate  in  its  second  article,  after  the 
words  ‘Chinese  laborers  who  are  now  in  the  United  States’ 
the  words  ‘and  who  shall  continue  to  reside  therein.’  The 
plaintiff  in  error  left  this  country  after  the  ratification  of 
the  treaty,  having  the  right,  secured  by  its  articles,  to  re- 
turn, of  his  own  free  will,  without  being  subjected  to 
burdens  or  regulations  that  materially  interfere  with  its 
enjoyment.”  48 

It  was  judicially  recognized  at  an  early  date  that  the 
treaty  does  not  purport  to  give  the  United  States  the  right 
to  prohibit  absolutely  the  coming  of  Chinese  laborers  but 
merely  to  restrict  their  immigration,  and  authorize  legis- 
lation by  Congress  to  this  effect,49  and  the  power  to  exclude 
expressed  therein  was  held  to  apply  not  only  to  Chinese 

47 Ibid,  p.  549. 

48And  see  ex  parte  Ng  Quong  Ming,  135  Fed.  378;  Jung  Ah  Lung  v. 
United  States,  124  U.  S.  621,  31  Law  Ed.  591. 

49ln  re  Ah  Lung,  18  Fed.  28;  United  States  v.  Yong  Yeu,  83  Fed.  832. 


Power  and  Methods. 


29 


laborers  coming  from  China  but  from  all  other  parts  of 
the  world.50  It  is  unnecessary  to  add  in  this  connection 
that  while  the  United  States  could  not  claim  under  the 
treaty  absolutely  to  prohibit  the  immigration  of  Chinese, 
neither  the  power  to  restrict  nor  to  prohibit  the  entrance 
of  aliens  into  this  country  finds  its  source  in  treaty  obli- 
gations. It  always  exists  as  an  inherent  trait  of  national 
sovereignty,  not  to  be  abandoned  or  surrendered  by  the 
nation.51  By  agreeing  to  the  conditions  of  the  first  article 
of  the  treaty,  the  treaty  making  power  went  no  further 
than  to  pledge  this  country  to  exercise  its  already  existing 
right  to  exclude  Chinese  laborers  only  to  the  extent  of 
temporarily  restricting  their  coming. 

In  an  early  Federal  case  it  was  decided  that  since  Article 
II  provides  that  servants  of  the  members  of  the  exempt 
classes  might  accompany  them  it  necessarily  follows  that 
the  same  right  is  thereby  accorded  their  wives  and  minor 
children52  and  the  Supreme  Court  has  held53  that  “it  is 
not  possible  to  presume  that  the  treaty,  in  omitting  to 
name  the  wives  of  those  who  by  the  second  article  were  en- 
titled to  admission  meant  that  they  should  be  excluded. 
If  not,  then  they  were  entitled  to  admission  because  they 
were  such  wives,  although  not  in  terms  mentioned  in  the 
treaty.” 

The  fact  that  Article  IV  of  the  treaty  provides  that  in 
case  of  hardship  upon  subjects  of  China  in  the  United 
States  the  Chinese  minister  in  Washington  shall  bring  the 
matter  to  the  attention  of  the  Secretary  of  State  of  the 
United  States  does  not  limit  the  claimant  to  a diplomatic 
remedy;  the  courts  are  always  at  his  disposal.54 

50 In  re  Ah  Lung,  18  Fed.  28. 

5iChae  Chan  Ping  v.  United  States,  130  U.  S.  581,  32  Law  Ed.  1068. 

52I?i  re  Chung  Toy  Ho,  42  Fed.  398. 

53United  States  v.  Gue  Lim,  176  U.  S.  549,  44  Law  Ed.  544. 

^United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  31  Law  Ed.  591. 


30  The  Exclusion  and  Expulsion  of  Aliens. 

(B.)  The  Treaty  of  December  8,  1894. 

On  March  12,  1888,  a new  treaty  between  the  United 
States  of  America  and  the  Emperor  of  China  was  signed 
by  the  high  contracting  parties,  but  in  the  end  rejected  by 
the  Chinese  Government.  But  on  December  8,  1894,  the 
Convention  Kegulating  Chinese  Immigration  concluded  on 
the  17th  of  March  preceding  was  duly  proclaimed.  By 
the  terms  of  this  treaty,  the  coming  of  Chinese  laborers  to 
the  United  States  was  absolutely  prohibited  under  the  con- 
ditions therein  specified.  This  treaty  terminated  Dec. 
7th,  1904,  on  notice  being  given  by  the  Chinese  Govern- 
ment. The  first  five  articles  of  the  treaty  read  as  follows : 

Article  I. 

The  High  Contracting  Parties  agree  that  for  a period  of 
ten  years,  beginning  with  the  date  of  the  exchange  of 
the  ratifications  of  this  Convention,  the  coming,  except 
under  the  conditions  hereinafter  specified,  of  Chinese  la- 
borers to  the  United  States  shall  be  absolutely  prohibited. 

Article  II. 

The  preceding  article  shall  not  apply  to  the  return  to 
the  United  States  of  any  registered  Chinese  laborer  who 
has  a lawful  wife,  child  or  parent  in  the  United  States,  or 
property  therein  of  the  value  of  one  thousand  dollars,  or 
debts  of  like  amount  due  him  and  pending  settlement. 
Nevertheless  every  such  Chinese  laborer  shall,  before  leav- 
ing the  United  States,  deposit,  as  a condition  of  his  return, 
with  the  collector  of  customs  of  the  district  from  which  he 
departs,  a full  description  in  writing  of  his  family,  or 
property,  or  debts,  as  aforesaid,  and  shall  be  furnished 
by  said  collector  with  such  certificate  of  his  right  to  return 
under  this  treaty  as  the  laws  of  the  United  States  may  now 
or  hereafter  prescribe  and  not  inconsistent  with  the  pro- 
visions of  this  treaty,  and  should  the  written  description 
aforesaid  be  proved  to  be  false,  the  right  of  return  there- 
under, or  of  continued  residence  after  return,  shall  in  each 
case  be  forfeited.  And  such  right  of  return  to  the  United 
States  shall  be  exercised  within  one  year  from  the  date  of 
leaving  the  United  States ; but  such  right  of  return  to  the 
United  States  may  be  extended  for  an  additional  period, 


Power  and  Methods. 


31 


not  to  exceed  one  year,  in  cases  where  by  reason  of  sick- 
ness or  other  cause  of  disability  beyond  his  control,  such 
Chinese  laborer  shall  be  rendered  unable  sooner  to  return 
— which  facts  shall  be  fully  reported  to  the  Chinese  consul 
at  the  port  of  departure,  and  by  him  certified,  to  the  satis- 
faction of  the  collector  of  the  port  at  which  such  Chinese 
subject  shall  land  in  the  United  States.  And  no  such 
Chinese  laborer  shall  be  permitted  to  enter  the  United 
States  by  land  or  sea  without  producing  to  the  proper 
officer  of  the  customs  the  return  certificate  herein  re- 
quired. 

Article  III. 

The  provisions  of  the  Convention  shall  not  affect  the 
right  at  present  enjoyed  of  Chinese  subjects,  being  officials, 
teachers,  students,  merchants  or  travelers  for  curiosity  or 
pleasure,  but  not  laborers,  of  coming  to  the  United  States 
and  residing  therein.  To  entitle  such  Chinese  subjects  as 
are  above  described  to  admission  into  the  United  States, 
they  may  produce  a certificate  from  their  government  or 
the  government  where  they  last  resided  vised  by  the  diplo- 
matic or  consular  representative  of  the  United  States  in 
the  country  or  port  whence  they  depart. 

It  is  also  agreed  that  Chinese  laborers  shall  continue  to 
enjoy  the  privilege  of  transit  across  the  territory  of  the 
United  States  in  the  course  of  their  journey  to  or  from 
other  countries,  subject  to  such  regulations  by  the  Gov- 
ernment of  the  United  States,  as  may  be  necessary  to  pre- 
vent said  privilege  of  transit  from  being  abused. 

Article  IV. 

In  pursuance  of  Article  III  of  the  Immigration  Treaty 
between  the  United  States  and  China,  signed  at  Peking 
on  the  17th  day  of  November,  1880  (the  15th  day  of  the 
tenth  month  of  Kwanghsu,  sixth  year, ) it  is  hereby  under- 
stood and  agreed  that  Chinese  laborers  or  Chinese  of  any 
other  class,  either  permanently  or  temporarily  residing  in 
the  United  States,  shall  have  for  the  protection  of  their 
persons  and  property  all  rights  that  are  given  by  the  laws 
of  the  United  States  to  citizens  of  the  most  favored  nation, 
excepting  the  right  to  become  naturalized  citizens.  And 
the  Government  of  the  United  States  reaffirms  its  obliga- 


32 


The  Exclusion  and  Expulsion  of  Aliens. 


tion,  as  stated  in  said  Article  III,  to  exert  all  its  power 
to  secure  protection  to  the  persons  and  property  of  all 
Chinese  subjects  in  the  United  States. 

Article  V. 

The  Government  of  the  United  States,  having  by  an  Act 
of  the  Congress,  approved  May  5,  1892,  as  amended  by  an 
Act  approved  November  3,  1893,  required  all  Chinese  la- 
borers lawfully  within  the  limits  of  the  United  States  be- 
for  the  passage  of  the  first-named  act  to  be  registered  as  in 
said  acts  provided,  with  a view  of  affording  them  better 
protection,  the  Chinese  Government  will  not  object  to  the 
enforcement  of  such  acts,  and  reciprocally  the  Government 
of  the  United  States  recognizes  the  right  of  the  Govern- 
ment of  China  to  enact  and  enforce  similar  laws  or  regula- 
tions for  the  registration,  free  of  charge,  of  all  laborers, 
skilled  or  unskilled  (not  merchants  as  defined  by  said  Acts 
of  Congress),  citizens  of  the  United  States  in  China, 
whether  residing  within  or  without  the  treaty  ports. 

And  the  Government  of  the  United  States  agrees  that 
within  twelve  months  from  the  date  of  the  exchange  of  the 
ratifications  of  this  Convention,  and  annually  thereafter,  it 
will  furnish  to  the  Government  of  China  registers  or  re- 
ports showing  the  full  name,  age,  occupation,  and  number 
or  place  of  residence  of  all  other  citizens  of  the  United 
States,  including  missionaries,  residing  both  within  and 
without  the  treaty  ports  of  China,  not  including,  however, 
diplomatic  and  other  officers  of  the  United  States  residing 
or  traveling  in  China  upon  official  business,  together  with 
their  body  and  household  servants.” 

It  was  generally  contended  in  the  case  of  United  States 
v.  Lee  Yen  Tai55  that  the  treaty  covered  the  whole  subject 
of  Chinese  immigration  and  by  implication  was  intended 
to  be  a substitute  for  the  prior  laws  and  treaties  on  the 
subject  which  it  repealed  by  implication;  and  specially 
that  there  was  no  authority  under  it  for  deporting  the 
appellee  under  the  warrant  of  a United  States  commis- 
sioner who  had  ordered  him  deported  after  finding  that 
he  was  unlawfully  in  this  country  in  accordance  with  the 
provisions  of  the  Act  of  1892.  But  the  court  held  that  the 

55185  U.  S.  213,  46  Law  Ed.  878. 


Power  and  Methods. 


33 


act  in  question  was  in  perfect  harmony  with  the  treaty  and 
could  be  enforced  without  affecting  or  impairing  any  right 
secured  thereby. 

Again  it  was  contended  in  the  cases  of  Ah  How  v.  United 
States56  and  Tom  Hong  y.  United  States57  that  the  treaty, 
when  considered  in  connection  with  the  Act  of  April  29, 
1902, 58  continuing  all  laws  in  force  “so  far  as  the  same 
are  not  inconsistent  with  the  treaty  obligations”  enlarged 
the  rights  of  Chinese  to  remain  in  the  United  States  by 
doing  away  with  their  obligation  to  prove  their  right  to 
remain  according  to  sections  3 and  6 of  the  Act  of  1892. 
But  the  court  said,  in  the  Ah  How  case,  that  Article  IY  of 
the  treaty  “could  not  have  been  supposed  to  promise  that 
special  measures  theretofore  taken  should  not  be  construed 
in  force  for  the  purpose  of  ascertaining  the  very  question 
whether  the  laborers  were  lawfully  residing  in  the  United 

States  or  not But  it  is  enough  to  say  that  Article 

V expressly  refers  to  the  Act  of  1892  as  amended  by  the 
Act  of  1893,  and  states  that  the  Chinese  Government  will 
not  object  to  the  enforcement  of  those  acts.”  In  the  Tom 
Hong  case,  the  court  refers  to  this  question  as  having  been 
“disposed  of”  in  the  case  just  cited. 

It  has  been  held  that  where  Article  II  provides  for  the 
granting  of  return  certificates  to  Chinese  laborers  visiting 
China,  who  have  property  in  this  country  of  the  value  of 
one  thousand  dollars,  what  is  required  is  that  he  shall  be 
worth  the  property  in  question  at  the  time  of  his  return  to 
the  United  States — not  merely  at  the  time  of  his  departure 
for  China.59 

Article  III  provides  that  members  of  the  exempt  classes 
“may”  produce  a certificate  from  their  government  or  the 
government  where  they  last  resided  properly  vised  to  en-  * 
title  them  to  admission  into  the  United  States.  In  the 

56Ah  How  y.  United  States,  193  U.  S.  65,  48  Law  Ed.  619. 

57Tom  Hong  v.  United  States,  193  U.  S.  517,  48  Law  Ed.  772. 

ssChap.  641,  32  Stat.  at  L.  176. 

59In  re  Ong  Lung,  125  Fed.  814. 


34  The  Exclusion  and  Expulsion  of  Aliens. 

case  of  United  States  v.  Gue  Lim,60  the  Government  con- 
tended that  the  purport  of  the  Article  was  that  all  Chinese 
of  the  exempt  classes  were  under  the  obligation  of  pro- 
ducing the  certificates,  and,  therefore,  that  the  wife  and 
minor  children  of  a Chinese  merchant  domiciled  here,  who 
had  been  admitted  in  1897  without  producing  the  certifi- 
cate in  question  were  unlawfully  in  the  United  States. 
The  court  decided  that  the  treaty  of  1894  did  not  alter  the 
result  flowing  from  the  treaty  of  1880  and  the  Act  of  1884. 
That  treaty  made  no  provisions  for  the  presentation  of 
certificates  by  members  of  the  exempt  classes,  but  the 
Act  of  1882  amended  by  that  of  1884  provided  not  only 
that  such  certificate  should  be  presented  but  that  it  should 
constitute  the  only  evidence  of  the  applicant’s  right  to 
enter.  “Although,”  said  the  court,  “the  third  article  of 
the  treaty  of  1894  does  speak  of  certificates  for  Chinese 
subjects  therein  described,  who  already  enjoy  the  right  to 
enter  the  country,  the  question  recurs  whether  the  certifi- 
cate of  the  husband  who  himself  enjoys  the  right  is  not 
enough  for  the  wife,  the  fact  being  proved  or  admitted  that 
she  is  such  wife.  Possibly  the  result  of  the  Treaty  of  1894 
may  be  held  to  be,  instead  of  simply  prohibiting  the  en- 
trance of  Chinese  laborers,  to  restrict  the  right  of  entry  to 
those  classes  who  are  specially  named  in  the  third  article 
of  the  treaty.  But  the  question  would  still  remain  whether 
the  wives  of  the  members  of  the  classes  privileged  to  enter 
were  not  entitled  themselves  to  enter  by  reason  of  the  right 
of  the  husband  and  without  the  certificate  mentioned  in  the 
Act  of  1884.”  This  question  the  court  decided  in  the  af- 
firmative both  as  to  the  wives  and  minor  children  of  mem- 
bers of  the  exempt  classes;  and  the  third  article  of  the 
treaty  was  held  not  to  create  new  obligations  regarding  the 
presentation  of  the  certificate. 

In  Lee  Lung  v.  Patterson,61  the  Supreme  Court  again 
had  occasion  to  interpret  Article  III  under  a state  of  facts 

eoUnited  States  v.  Gue  Lim,  176  U.  S.  459,  44  Law  Ed.  544. 

eiLee  Lung  v.  Patterson,  186  U.  S.  168,  46  Law  Ed.  1108. 


Power  and  Methods. 


35 


analogous  to  that  presented  in  the  Gue  Lim  case.  Here 
a Chinese  woman  alleging  herself  to  be  the  wife  of  a 
Chinese  merchant  domiciled  in  the  United  States  sought  in 
company  with  the  alleged  husband  and  an  alleged  minor 
child,  admission  into  this  country.  The  mother  and  daugh- 
ter each  presented  the  “section  six”  certificate  required  by 
the  Act  of  1884.  They  were  refused  admission  by  the  col- 
lector of  customs  on  the  ground  that  the  certificate  was  ir- 
regular, that  the  wife  was  a plural  wife,  and  that  the  re- 
lationship of  the  alleged  daughter  was  not  duly  estab- 
lished. The  decision  was  sustained  by  the  Secretary  of  the 
Treasury,  the  petition  in  habeas  corpus  filed  in  the  United 
States  District  Court  for  the  District  of  Oregon  was  de- 
nied, and  the  parties  appealed  to  the  Supreme  Court  of 
the  United  States.  They  contended  that  Article  III  pre- 
scribed the  only  evidence  which  a member  of  the  exempt 
class  of  Chinese  must  produce,  and  abrogates  the  Act  of 
1882  and  those  amendatory  thereof,  as  well  of  the  treaty 
of  1880.  The  court,  on  the  grounds  stated  in  the  Lee  Yen 
Tai  decision,62  held  that  such  an  interpretation  of  Article 
III  was  incorrect,  and  that  the  certificate  which  members 
of  the  exempt  classes  might  produce  was  subject  to  contro- 
version by  the  Government. 

It  may  not  be  out  of  place  to  refer  in  this  connection 
to  the  different  state  of  facts  presented  by  the  Gue  Lim 
and  Lee  Lung  cases.  In  the  Gue  Lim  case,  the  petitioner 
was  not  refused  a landing  by  the  executive  officers ; in  the 
Lee  Lung  case,  she  was.  Gue  Lim  was  arrested  on  the 
charge  of  being  a Chinese  laborer  without  the  registration 
certificate  required  by  the  Act  of  1892;  Lee  Lung  for  at- 
tempting to  enter  this  country  on  an  irregular  certificate. 
Gue  Lim  was  admitted  to  be  the  lawful  wife  of  her  alleged 
husband ; this  was  denied  as  to  Lee  Lung.  The  question  of 
Gue  Lim’s  right  to  remain  as  presented  to  the  Supreme 
Court  was  purely  one  of  law ; that  of  Lee  Lung  to  enter — 
apart  from  the  question  raised  as  to  the  effect  of  Article 
HI  of  the  Treaty  of  1894  on  prior  laws  and  treaties — a 


36  The  Exclusion  and  Expulsion  of  Aliens. 


simple  finding  of  fact.  Insofar  as  the  facts  as  found 
by  the  collector  and  affirmed  by  the  Secretary  of  the  Treas- 
ury affected  the  question  of  the  jurisdiction  of  administra- 
tive officers  the  Court  held  in  the  Lee  Lung  case  that  the 
latter’s  jurisdiction  was  not  lost  “by  not  giving  sufficient 
weight  to  evidence  or  by  rejecting  proper  evidence  or  by 
admitting  that  which  is  improper.”  The  absence  of  a fair 
hearing  does  not  appear  to  have  been  urged,  although  it 
was  alleged  that  the  collector  had  “ignored”  the  certifi- 
cates. But  the  term  “ignore”  was  apparently  used  in  the 
sense  that  the  collector  had  refused  to  concede  them  para- 
mount evidentiary  effect  over  all  the  other  evidence  pre- 
sented; and  this  the  court  held,  he  was  not  obliged  under 
Article  III  of  the  Treaty  of  1894  to  do. 

Nor  is  the  decision  in  the  later  case  of  Lim  Hop  Fong63 
in  conflict  with  the  result  reached  in  the  foregoing  opinion. 
There  the  facts  showed  that  the  plaintiff  in  error  had  been 
granted  a certificate  by  the  proper  authority  at  Macao, 
whence  he  came,  in  which  he  was  described  as  a student. 
He  was  arrested  on  the  charge  of  being  a Chinese  laborer 
unlawfully  in  the  United  States,  and  ordered  deported  as 
such  after  a hearing  before  the  United  States  commis- 
sioner. After  finding  that  he  had  presented  as  evidence  of 
his  exempt  status  the  certificate  prescribed  by  Article  III 
of  the  treaty,  the  court  said:  “When  this  young  man 
entered  a port  of  the  United  States  in  July,  1899,  he  pre- 
sented such  a certificate  duly  issued  and  vised  by  the  con- 
sular representative  of  the  United  States.  Upon  applica- 
tion for  admission  this  certificate  is  prima  facie  evidence 
of  the  facts  set  forth  therein.64  This  certificate  is  the 
method  which  the  two  countries  contracted  in  the  treaty 
should  establish  a right  of  admission  of  students  and 
others  of  the  exempted  classes  into  the  United  States,  and 

62 Ante,  p.  31. 

63Lim  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

6422  Stat.  at  L.  58,  sec.  6,  chap.  126 ; U.  S.  Comp.  Stat.  1901,  p.  1307 ; 33 
Stat.  at  L.  428,  chap.  1630. 


Power  and  Methods. 


37 


certainly  it  ought  to  be  entitled  to  some  weight  in  deter- 
mining the  rights  of  the  one  thus  admitted.  While  this  cer- 
tificate may  be  overcome  by  proper  evidence,  and  may  not 
have  the  effect  of  a judicial  determination,  yet,  being  made 
in  conformity  to  the  treaty,  and  upon  it  the  Chinaman 
having  been  duly  admitted  to  a residence  in  this  country, 
he  cannot  be  deported,  as  in  this  case,  because  of  wrong- 
fully entering  the  United  States  upon  a fraudulent  certifi- 
cate, unless  there  is  some  competent  evidence  to  overcome 
the  legal  effect  of  the  certificate.  In  this  record  we  can 
find  no  competent  testimony  which  would  overcome  such 
legal  effect  of  the  certificate,  and  the  plaintiff  in  error  was 
therefore  wrongfully  ordered  to  be  deported.” 

Article  III  has  been  further  interpreted  by  the  Supreme 
Court  with  special  regard  to  its  effect  on  the  right  of  ad- 
ministrative offiicers  to  determine  whether  or  not  Chinese 
laborers  applying  for  admission  for  purposes  of  transit 
shall  be  allowed  to  enter.  In  the  case  of  Fok  Young  Yo  v. 
United  States,65  the  court  said:  “The  first  article  of  the 
Treaty  of  December  8,  1894,  provides  that  The  coming, 
except  under  conditions  hereinafter  specified,  of  Chinese 
laborers  to  the  United  States  shall  be  absolutely  pro- 
hibited.’ The  second  paragraph  of  Article  III  reads:  ‘It 
is  also  agreed  that  Chinese  laborers  shall  continue  to  enjoy 
the  privileges  of  transit  across  the  territory  of  the  United 
States  in  the  course  of  their  journey  to  or  from  other 
countries,  subject  to  such  regulations  by  the  Government 
of  the  United  States  as  may  be  necessary  to  prevent  said 
privileges  from  being  abused.’  We  regard  this  as  explic- 
itly recognizing  existing  regulations,  and  as  assenting  to 
their  continuance  and  to  such  modification  of  them  as 
might  be  found  necessary  to  prevent  abuse.  It  dealt  with 
the  subject  specifically  and  was  operative  without  an  Act 
of  Congress  to  carry  it  into  effect.  The  Treaty  of  1880, 66 
in  declaring  in  respect  of  the  coming  of  Chinese  laborers 

65Fok  Young  Yo  v.  United  States,  185  U.  S.  296,  46  Law  Ed.  917. 

6622  Stat.  at  L.  826. 


38  The  Exclusion  and  Expulsion  of  Aliens. 

into  this  country  that  the  Government  of  the  United  States 
might  ‘regulate,  limit  or  suspend  such  coming  or  residence’ 
did  not  refer  to  the  privilege  of  transit,  and,  as  it  was  not 
self-executing,  the  Act  of  May  6,  1882,  was  passed  to  carry 
the  stipulation  into  effect.  But  the  provision  of  this  treaty 
applicable  here,  in  recognizing  the  privilege  of  transit  and 
providing  that  it  should  continue,  proceeded  on  the  ground 
of  its  existence  and  continuance  under  governmental  regu- 
lations, and  no  act  of  Congress  was  required So, 

in  the  case  before  us,  the  treaty  manifestly  operated  to 
commit  the  subject  of  transit  to  executive  regulation  and 
determination;  and  by  the  then,  as  well  as  the  present, 
regulations,  the  final  decision  as  to  permitting  transit  was 
devolved  on  the  collector  of  customs,  and  no  appeal  to  the 
Secretary  was  provided  for.  It  appears  from  the  official 
documents  referred  to  on  the  argument  that  the  Treasury 
Department  has  ‘held  that  neither  the  treaty  nor  the  laws, 
relating  to  the  exclusion  of  Chinese,  either  expressly  or 
by  implication,  give  to  Chinese  persons  refused  the  privi- 
lege of  transit  the  right  of  appeal;’  but  possession  of  the 
power  to  grant  an  appeal,  or  to  supervise  the  action  of  the 
collector  in  some  other  appropriate  way,  in  circumstances 
demanding  intervention,  has  not  been  disavowed.” 

2.  The  Most  Favored  Nation  Clause  as  Affecting  the 
Operation  of  the  Exclusion  and  Immigration  Laws. 

(A.)  The  Treaties  with  China. 

Attention  may  be  called  to  arguments  which  have  been 
presented  on  behalf  of  aliens  seeking  to  enter  or  remain  in 
this  country  to  the  effect  that  the  existence  of  the  most 
favored  nation  clause  which  appears  in  the  fourth  article 
of  the  Treaty  with  China  in  1894,  relieves  Chinese  persons 
from  the  operation  of  certain  provisions  of  the  Chinese 
Exclusion  Act.  It  is  stipulated  in  that  article  that 
“Chinese  laborers  or  Chinese  of  any  other  class  either  per- 


Power  and  Methods. 


39 


manently  or  temporarily  residing  in  the  United  States 
shall  have  for  the  protection  of  their  persons  or  property 
all  rights  that  are  given  by  the  laws  of  the  United  States  to 
citizens  of  the  most  favored  nation  excepting  the  right  to 
become  naturalized  citizens.”  The  first  article  of  the 
Japanese  Treaty  of  1894  provides  that  “in  whatever  relates 

to  the  rights  of  residence  and  travel the 

citizen  or  subject  of  each  contracting  party  shall 
enjoy  in  the  territories  of  the  other  the  same 
privileges,  liberties  and  rights as citi- 

zens or  subjects  of  the  most  favored  nation”  and  the 
clause  appears  in  still  other  articles  of  the  treaty.  The 
Treaty  of  Friendship,  Commerce  and  Navigation  between 
the  United  States  and  Paraguay  of  1859  contains  provi- 
sions by  which  in  the  matter  of  protection  of  person,  and 
property,  the  citizens  of  either  country  shall  enjoy  in  the 
territory  of  the  other  the  rights  of  native  citizens.  In  the 
Ah  How  case,67  attention  was  called  to  the  Japanese  and 
Paraguayan  treaties  whereby  the  United  States  guarantees 
to  citizens  of  those  countries  the  rights  and  privileges 
of  native  citizens  in  access  to  the  courts  and  in  the  defence 
of  their  rights ; and  it  was  contended  that  the  treaty  with 
China  of  1894  in  connection  with  the  Act  of  April  29, 1902, 
which  continued  the  laws  relating  to  Chinese  immigration 
then  in  force  so  far  as  they  were  not  inconsistent  with 
treaty  obligations,  could  not  be  so  construed  as  to  leave 
the  burden  of  proof  on  Chinese  persons  to  establish  their 
right  to  remain  in  this  country.  In  answer  to  this  conten- 
tion the  court  said  that  section  3 of  the  Act  of  May  6, 1892, 
under  which  appellants  were  ordered  deported  by  a United 
States  commissioner,  had  been  upheld  “by  this  court,  since 
the  treaty  and  after  the  passage  of  the  act,”  and  proceeded 
to  point  out  that,  in  any  event  the  Chinese  government 
bound  itself  by  the  terms  of  the  treaty  not  to  object  to  the 
enforcement  of  the  act  in  question. 

67Ah  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619. 


40  The  Exclusion  and  Expulsion  of  Aliens. 

(B.)  The  Treaty  with  Denmark  of  May  6,  1826. 

The  United  States  Court  of  Claims  had  the  same  general 
question  before  it  in  the  case  of  Thingvalla  v.  United 
States,68  where  the  owners  of  a Danish  ship  claimed  that 
head  money  exacted  on  account  of  immigrants  was  ille- 
gally exacted,  and  should  be  refunded.  But  the  court  held 
that  the  exaction  fell  within  the  Act  of  August  3,  1882, 69 
and  refused  to  be  convinced  by  the  argument  that  the  “na- 
tive citizen  or  subject  clause”  of  the  treaty  between  the 
United  States  and  Denmark  of  1826  affected  the  case. 

(C.)  The  Treaty  with  Italy  of  April  29,  1871. 

The  treaty  of  commerce  and  navigation  with  Italy  rati- 
fied April  29,  1871, 70  provides  in  its  twenty- third  article 
that  “the  citizens  of  either  party  shall  have  free  access  to 
the  courts  of  justice,  in  order  to  maintain  and  defend 
their  own  rights,  without  any  other  conditions,  restric- 
tions, or  taxes  than  such  as  are  imposed  upon  the  natives ; 
they  shall,  therefore,  be  free  to  employ,  in  defense  of  their 
rights,  such  advocates,  solicitors,  notaries,  agents  and 
factors  as  they  may  judge  proper,  in  all  their  trials  at 
law,  and  such  citizens  or  agents  shall  have  free  oppor- 
tunity to  be  present  at  the  decisions  and  sentences  of  the 
tribunals,  in  all  cases  which  may  concern  them;  and  like- 
wise at  the  taking  of  all  examinations  and  evidences  which 
may  be  exhibited  in  the  said  trials.”  In  the  case  of  United 
States  ex  rel.  Buccino  et  al.  v.  Williams,71  it  was  con- 
tended that  the  board  of  special  inquiry  in  examining  into 
the  qualifications  of  an  alien  seeking  admission  to  this 
country  without  giving  him  an  opportunity  to  defend  by 
counsel  deprived  him  of  rights  secured  by  the  treaty.  But 
the  court  said,  “These  boards  of  inspectors  are  not  ‘courts 

6824  Ct.  Cl.  255. 

69C.  370,  22  Stat.  214. 

T017  Stat.  at  L.  856. 

71190  Fed.  897.  ■* 


Power  and  Methods. 


41 


of  justice/  nor  are  the  examinations  by  them  of  incoming 
aliens  touching  their  qualifications  ‘trials  at  law.’  There  is 
nothing  in  the  treaty  which  secures  to  Italian  aliens  seek- 
ing to  enter  this  country  any  rights  superior  to  those 
possessed  by  aliens  of  other  races.” 

(D.)  The  Treaty  with  Japan  of  March  21,  1895. 

By  the  Act  of  August  18,  1894,  it  was  provided  that 
wherever  an  alien  was  excluded  from  admission  into  the 
United  States  under  any  law  or  treaty  then  existing  or 
thereafter  to  be  made,  the  excluding  decision  of  the  appro- 
priate executive  officer  was  to  be  final  unless  reversed  on 
appeal  to  the  Secretary  of  the  Treasury.  Thereafter  came 
the  treaty  between  this  country  and  Japan  concluded  No- 
vember 23,  1894,  and  proclaimed  March  21st,  1895,  which 
was  to  go  into  operation  on  July  17,  1899.  It  was  pro- 
vided by  the  first  article  that  “the  citizens  or  subjects  of 
each  of  the  two  high  contracting  parties  shall  have  full 
liberty  to  enter,  travel,  or  reside  in  any  part  of  the  terri- 
tories of  the  other  contracting  party,  and  shall  enjoy  full 
and  perfect  protection  for  their  persons  and  property. 
They  shall  have  free  access  to  the  courts  of  justice  in  pur- 
suit and  defence  of  their  rights;  they  shall  be  at  liberty 
equal  with  native  citizens  or  subjects  to  choose  and  employ 
lawyers,  advocates  and  representatives  to  pursue  and  de- 
fend their  rights  before  such  courts,  and  in  all  other  mat- 
ters connected  with  the  administration  of  justice  they  shall 
enjoy  all  the  rights  and  privileges  enjoyed  by  native  citi- 
zens or  subjects;72  and  by  the  second  article,  “it  is,  how- 
ever, understood  that  the  stipulation  contained  in  this  and 
the  preceding  article  do  not  in  any  way  affect  the  laws, 
ordinances  and  regulations  with  regard  to  trade,  the  im- 
migration of  laborers,  police  and  public  security  which  are 
in  force  or  which  may  hereafter  be  enacted  in  either  of 
the  two  countries.”  In  the  case  of  Yamataya  v.  Fisher,73 

7229  Stat.  at  L.  849. 

73189  U.  S.  86,  47  Law  Ed.  721. 


42  The  Exclusion  and  Expulsion  of  Aliens. 

a subject  of  Japan,  after  having  effected  an  entrance  into 
this  country,  was  arrested  on  a warrant  of  the  Secretary 
of  the  Treasury  issued  under  the  authority  of  the  Act  of 
October  19,  1888, 74  and  ordered  deported  on  the  ground 
that  she  was  a public  charge  who  had  been  permitted  to 
land  contrary  to  the  provisions  of  the  Act  of  March  3, 
1891.75  It  was  contended  that  the  appellant  was  vested 
with  the  right  to  enter  irrespective  of  the  prohibitions  of 
existing  immigration  acts  by  virtue  of  the  Treaty  of  1895 
with  Japan,  but  the  court  said : “From  the  above  acts  of 
Congress  it  appears  that  among  the  aliens  forbidden  to 
enter  the  United  States  are  those  of  whatever  country  who 
are  ‘paupers,  or  persons  likely  to  become  a public  charge.’ 
We  are  of  opinion  that  aliens  of  that  class  have  not  been 
given  by  the  treaty  with  Japan  full  liberty  to  enter  or  reside 
in  the  United  States ; for  that  instrument  expressly  excepts 
from  its  operation  any  ordinance  or  regulation  relating  to 
‘police  or  public  security.’  A statute  excluding  paupers 
or  persons  likely  to  become  a public  charge  is  manifestly 
one  of  police  and  public  security.  Aside  from  that  specific 
exception  we  should  not  be  inclined  to  hold  that  the  pro- 
vision in  the  treaty  with  Japan  that  the  citizens  or  subjects 
of  each  of  the  two  countries  should  have  ‘full  liberty  to 
enter,  travel  or  reside  in  any  part  of  the  territories  of  the 
other  contracting  party’  has  any  reference  to  that  class,  in 
either  country,  who,  from  their  habits  or  condition,  are 
ordinarily  or  properly  the  object  of  police  regulations  de- 
signed to  protect  the  general  public  against  contact  with 
dangerous  or  improper  persons.” 

C.  Effect  on  Existing  Treaties  or  Laws  of  Subsequent 
Laws  or  Treaties. 

Bonfils  says:  “A  state  has  the  right  to  expel  from  its 
territory  aliens  individually  or  collectively  unless  treaty 

7425  Stat.  at  L.  565. 

7626  Stat.  at  L.  1084. 


Power  and  Methods. 


43 


provisions  stand  in  the  way ” 76  This  amounts  to  an 

assertion  of  the  general  proposition  that  nations  dealing 
with  each  other  in  good  faith  will  live  up  to  the  terms  of 
agreements  made  between  them  when  such  agreements  deal 
in  whole  or  in  part  with  the  admission  or  exclusion  of 
nationals  of  the  other  contracting  state.  But  since  the 
exclusion  or  expulsion  of  foreigners,  either  individually  or 
collectively,  may  be  adopted  by  a state  as  the  proper  means 
of  self  preservation  and  in  the  public  interest  of  the  com- 
munity, it  is  apparent  that  no  state  can  maintain  its  sov- 
ereignty and  at  the  same  time  barter  away  by  treaty  or 
otherwise  any  power  on  the  exercise  of  which  its  preserva- 
tion and  national  integrity  may,  by  any  possibility  de- 
pend. It  has  long  since  been  held  that  treaties  are  subject 
to  abrogation  by  subsequent  acts  of  Congress,  and,  as  ex- 
pressions of  the  will  of  the  people  of  the  United  States,  are 
no  more  binding  than  Congressional  acts.  Where  the 
terms  of  an  act  of  Congress  passed  subsequent  to  the  treaty 
are  so  clearly  in  contravention  and  derogation  of  the  stipu- 
lations of  the  former  as  to  leave  no  room  for  interpretation, 
and  where  the  only  point  at  issue  is  whether  or  not  Con- 
gress has  the  power  to  abrogate  by  legislative  action  agree- 
ments with  sister  states,  the  courts  have  expressed  no 
doubt  of  its  ability  to  do  so. 

“A  treaty,”  says  Chief  Justice  Marshall,77  “is  in  its 
nature  a contract  between  two  nations,  not  a legislative 
act.  It  does  not  generally  affect,  of  itself,  the  object  to  be 
accomplished,  especially  so  far  as  its  operation  is  infra- 
territorial; but  is  carried  into  execution  by  the  sovereign 
power  of  the  respective  parties  to  the  instrument.  In  the 
United  States  a different  principle  is  established.  Our 
Constitution  declares  a treaty  to  be  the  law  of  the  land. 
It  is,  consequently,  to  be  regarded  in  courts  of  justice  as 
equivalent  to  the  acts  of  the  legislature,  whenever  it  ope- 

76Manuel  du  Droit  Int.  Pub.  Par.  442,  cited  in  Moore  Int.  Law  Dig., 
Yol.  IY,  p.  68. 

^Foster  and  Elam  v.  Neilson,  2 Peters  254,  314,  7 Law  Ed.  415,  435. 


44  The  Exclusion  and  Expulsion  of  Aliens. 

rates  of  itself  without  the  aid  of  any  legislative  provision. 
But  when  the  terms  of  the  stipulation  import  a contract — 
when  either  of  the  parties  engages  to  perform  a particular 
act — the  treaty  addresses  itself  to  the  political,  not  the  ju- 
dicial, department;  and  the  legislature  must  execute  the 
contract  before  it  can  become  a rule  for  the  court.” 

In  the  case  of  the  Cherokee  Tobacco  v.  United  States7* 
it  was  contended  that  the  one  hundredeth  and  seventh  sec- 
tion of  the  Act  of  July  20, 1868,  imposing  taxes  on  distilled 
spirits,  tobacco,  and  other  commodities  could  not  apply  to 
the  Cherokee  nation,  because  to  do  so  would  be  to  violate 
the  tenth  article  of  the  existing  treaty  with  that  nation. 
After  citing  the  second  section  of  the  fourth  article  of  the 
Constitution  which  declares  that  the  Constitution,  the  laws 
of  the  United  States  and  all  treaties  made  under  its  au- 
thority, shall  be  the  supreme  law  of  the  land,  the  court 
proceeds : "It  need  hardly  be  said  that  a treaty  cannot  vio- 
late the  Constitution  or  be  held  valid  if  it  be  in  violation  of 
that  instrument.  This  results  from  the  nature  and  funda- 
mental principles  of  our  government.  The  effect  of  treaties 
and  acts  of  Congress  when  in  conflict  is  not  settled  by  the 
Constitution,  but  the  question  is  not  involved  in  any  doubt 
as  to  its  proper  solution.  A treaty  may  supersede  a prior 
act  of  Congress  and  an  act  of  Congress  may  supersede  a 
prior  treaty.”79 

This  question  first  came  up  for  the  Supreme  Court’s 
consideration  in  its  application  to  the  immigration  statutes 
in  the  case  of  Chew  Heong  v.  United  States  ;80  but  in  a sense 
indirectly,  since  the  court  there  held  that  the  Act  of  May 
6,  1882, 81  as  amended  by  that  of  July  5,  1884, 82  could  not, 
upon  analysis  of  its  terms,  and  particularly  in  view  of  the 
fact  that  its  avowed  purpose  was  to  carry  out  objects  of 

7811  Wallace  616,  20  Law  Ed.  227. 

79 Citing  Foster  v.  Neilson,  2 Pet.  314;  Taylor  v.  Morton,  2 Curt.  454; 
The  Clinton  Bridge,  1 Wool.  155. 

80112  U.  S.  536,  28  Law  Ed.  77. 

8i22  Stat.  at  L.  58. 

8223  Stat.  at  L.  115. 


Power  and  Methods. 


45 


the  treaty  with  China  of  1880,  be  interpreted  as  intending 
to  “disregard  the  plighted  faith  of  the  Government”  not 
to  interfere  with  the  rights  of  Chinese  laborers  domiciled  in 
this  country  at  the  time  the  treaty  went  into  effect.  There 
the  court  adverted  to  the  maxim  of  law  that  “treaties  of 
every  kind  are  to  receive  a liberal  interpretation  according 
to  the  intention  of  the  contracting  parties,  and  are  to  be 
kept  in  a most  scrupulous  good  faith and  remarked  that 
“aside  from  the  duty  imposed  by  the  Constitution  to  re- 
spect treaty  stipulations  when  they  become  the  subject  of 
judicial  proceedings,  the  court  cannot  be  unmindful  of  the 
fact  that  the  honor  of  the  Government  and  people  of  the 
United  States  is  involved  in  every  inquiry  whether  rights 
secured  by  such  stipulations  shall  be  recognized  and  pro- 
tected.” 

In  the  case  of  Edye  v.  Robinson,83  decided  on  the  same 
day,  it  was  contended  that  the  Immigration  Act  of  1882, 84 
imposing  a head  tax  on  foreigners  coming  to  this  country, 
was  in  violation  of  numerous  treaties  entered  into  by  the 
Government  with  friendly  nations.  While  the  court  was 
not  satisfied  that  any  of  these  treaties  were  violated  by  the 
act  of  Congress  in  question  it  took  occasion  to  express  the 
opinion  that  in  so  far  as  its  provisions  might  be  found  to 
be  in  conflict  with  the  stipulations  of  foreign  treaties  they 
must  prevail  in  all  the  judicial  courts  of  the  United 
States.  Said  Mr.  Justice  Miller:  “A  treaty,  then,  is  a 
law  of  the  land  as  an  act  of  Congress  is,  whenever  its  pro- 
visions prescribe  a rule  by  which  the  rights  of  a private 
citizen  or  subject  may  be  determined.  And  when  such 
rights  are  of  a nature  to  be  enforced  in  a court  of  justice, 
that  court  resorts  to  the  treaty  for  a rule  of  decision  for 
the  case  before  it  as  it  would  to  a statute.  But  even  in  this 
aspect  of  the  case  there  is  nothing  in  this  law  which  makes 
it  irrepealable  or  unchangeable.  The  Constitution  gives  it 
no  superiority  over  an  act  of  Congress  in  this  respect, 

830ne  of  the  Head  Money  cases,  112  U.  S.  580,  28  Law  Ed.  798. 

8422  Stat.  at  L.  214. 


46  The  Exclusion  and  Expulsion  of  Aliens. 

which  may  be  repealed  or  modified  by  an  act  of  a later  date. 
Nor  is  there  anything  in  its  essential  character  or  in  the 
branches  of  the  Government  by  which  the  treaties  are  made 
which  gives  it  this  superior  sanctity.  A treaty  is  made  by 
the  President  and  the  Senate.  Statutes  are  made  by  the 
President,  the  Senate  and  the  House  of  Representatives. 
The  addition  of  the  latter  body  to  the  other  two  in  making 
a law  certainly  does  not  render  it  less  entitled  to  respect  in 
the  matter  of  its  repeal  or  modification  than  a treaty  made 
by  the  other  two.  If  there  be  any  difference  in  this  regard, 
it  would  seem  to  be  in  favor  of  an  act  in  which  all  three 

of  the  parties  participate In  short,  we  are  of 

opinion  that,  so  far  as  a treaty  made  by  the  United  States 
with  any  foreign  nation  can  become  the  subject  of  judicial 
cognizance  in  this  country,  it  is  subject  to  such  acts  as 
Congress  may  pass  for  its  enforcement,  modification  or 
repeal.”  85 

• A striking  example  of  the.  abrogation  of  treaty  rights  by 
subsequent  congressional  legislation  is  afforded  by  the 
passage  of  the  Act  of  October  1,  1888.86  By  the  treaty  of 
1880  with  China,  Chinese  laborers  who  had  been  living  in 
the  United  States  prior  to  the  date  of  the  ratification  of 
the  treaty,  or  who  had  arrived  there  within  ninety  days 
thereafter,  were  expressly  given  the  right  to  come  and  go 
at  their  pleasure.  The  Act  of  1882  as  amended  by  that 
of  1884, 87  provided  for  the  issuance  of  a return  certificate 
to  any  Chinese  laborer  residing  in  the  United  States  which, 
on  presentation  at  the  time  of  his  arrival  from  a temporary 
absence  in  China  or  elsewhere,  authorized  him  to  re-enter 
the  country.  The  Act  of  October  1, 1888,  provided  in  effect 
that  no  Chinese  laborer,  whether  or  not  he  had  left  the 
United  States  prior  to  the  passage  of  that  act  or  had  ob- 
tained and  had  in  his  possession  the  return  certificate  pro- 
vided by  the  preceding  acts  should  be  allowed  to  enter  the 

ssAnd  see  158  U.  S.  584,  130  U.  S.  581,  142  Fed.  128. 

8625  Stat  at  L.  504. 

8722  Stat.  at  L.  58,  23  Stat.  at  L.  115. 


Power  and  Methods. 


47 


United  States.  “The  validity  of  this  act,”  says  Mr.  Justice 
Field,88  “as  already  mentioned  is  assailed  as  being  in  effect 
an  expulsion  from  the  country  of  Chinese  laborers  in  viola- 
tion of  existing  treaties  between  the  United  States  and  the 
government  of  China,  and  of  rights  vested  in  them  under 
the  laws  of  Congress.  The  objection  that  the  act  is  in 
conflict  with  the  treaties  was  earnestly  pressed  in  the  court 
below,  and  the  answer  to  it  constitutes  the  principal  part 
of  its  opinion.  (36  Fed.  Rep.  431.)  Here  the  objection 
made  is  that  the  Act  of  1888  impairs  a right  vested  under 
the  treaty  of  1880  as  a law  of  the  United  States,  and  the 
statutes  of  1882  and  of  1884  passed  in  execution  of  it.  It 
must  be  conceded  that  the  Act  of  1888  is  in  contravention 
of  express  stipulations  of  the  Treaty  of  1868  and  of  the 
Supplemental  Treaty  of  1880,  but  it  is  not  on  that  account 
invalid  or  to  be  restricted  in  its  enforcement.  The  treaties 
were  of  no  greater  obligation  than  the  act  of  Congress. 
By  the  Constitution,  laws  made  in  pursuance  thereof  and 
treaties  made  under  the  authority  of  the  United  States  are 
both  declared  to  be  the  supreme  law  of  the  land,  and  no 
paramount  authority  is  given  one  over  the  other.  A treaty, 
it  is  true,  is  in  its  nature  a contract  between  nations  and  is 
often  merely  promissory  in  its  character,  requiring  legisla- 
tion to  carry  its  stipulations  into  effect.  Such  legislation 
will  be  open  to  future  appeal  or  amendment.  If  the  treaty 
operates  by  its  own  force  and  relates  to  a subject  within 
the  power  of  Congress,  it  can  be  deemed  in  that  particular 
only  the  equivalent  of  a legislative  act,  to  be  repealed  or 
modified  at  the  pleasure  of  Congress.  In  either  case  the 

last  expression  of  the  sovereign  will  must  control 

It  will  not  be  presumed  that  the  legislative  department 
of  the  government  will  lightly  pass  the  laws  which  are  in 
conflict  with  the  treaties  of  the  country ; but  that  circum- 
stances may  arise  which  would  not  only  justify  the  Gov- 
ernment in  disregarding  their  stipulations,  but  demand  in 

88Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  32  Law  Ed.  1068. 


48  The  Exclusion  and  Expulsion  of  Aliens. 

the  interests  of  the  country  that  it  should  do  so  there  can 
be  no  question.”  And  in  a later  case  the  Supreme  Court 
said  that  it  is  impossible  to  hold  that  under  any  treaties 
or  acts  of  Congress  a Chinese  laborer  acquired  any  right 
to  remain  in  the  United  States  except  by  sufferance  of 
Congress  subject  to  its  power  to  expel  him  or  order  him 
deported  whenever  in  its  judgment  that  removal  is  neces- 
sary for  the  public  welfare.88a 

In  the  case  of  Lem  Moon  Sing  v.  United  States,89 
a Chinese  person  claiming  to  be  a merchant  left 
the  United  States  prior  to  the  passage  of  the  Act 
of  August  18,  1894,  which  provided  that  the  de- 
cision of  any  administrative  officer  excluding  any 
alien  seeking  to  enter  the  United  States  under  any  law  or 
treaty  would  be  final  as  to  the  right  of  the  alien  to  enter. 
This  act  was  passed  in  the  absence  of  the  applicant  and 
on  his  return  he  was  denied  admission  by  the  executive 
officers.  It  was  contended  on  his  behalf  that  he  had  ac- 
quired a commercial  domicile  in  the  United  States  prior 
to  the  passage  of  the  act  in  question,  and  that  the  acqui- 
sition of  this  domicile  lawfully  acquired  and  lawfully 
maintained  carried  with  it  the  vested  right  to  return  for 
the  purpose  of  maintaining  the  same.  The  court  held  that 
by  the  provsions  of  the  Act  of  1894,  Congress  had  taken 
away  from  the  courts  the  power  to  inquire  under  the  cir- 
cumstances into  the  question  as  to  whether  or  not  the  ap- 
plicant was  entitled  under  any  law  or  treaty  to  enter  the 
United  States ; and  in  passing  on  the  question  of  Congress’ 
right  to  enact  laws  in  abrogation  of  prior  treaties,  said: 
“If  the  Act  of  1894  thus  construed  takes  away  from  the 
alien  any  right  given  by  previous  laws  or  treaties  to  re- 
enter the  country  the  authority  of  Congress  to  do  even  that 
cannot  be  questioned.” 

“That  it  was  competent,”  says  the  Supreme  Court  in  the 

88aFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  698. 

89158  U.  S.  534,  39  Law  Ed.  1082. 


Power  and  Methods. 


49 


case  of  United  States  v.  Lee  Yen  Tai,90  “for  the  two  coun- 
tries by  treaty  to  have  superseded  a prior  act  of  Congress 
on  the  same  subject  is  not  to  be  doubted ; for  otherwise  the 
declaration  in  the  Constitution  that  a treaty  concluded  in 
the  mode  prescribed  by  that  instrument  shall  be  the  su- 
preme law  of  the  land,  would  not  have  due  effect.  As  Con- 
gress may  by  statute  abrogate  so  far  at  least  as  this  coun- 
try is  concerned,  a treaty  previously  made  by  the  United 
States  with  another  nation,  so  the  United  States  may  by 
treaty  supersede  a prior  act  of  Congress  on  the  same  sub- 
ject  Nevertheless,  the  purpose  by  statute  to  abro- 

gate the  treaty,  or  any  designated  part  of  a treaty,  or  of 
the  purpose  by  treaty  to  supersede  the  whole  or  a part  of 
an  act  of  Congress,  must  not  be  lightly  assumed,  but  must 
appear  clearly  and  distinctly  from  the  words  used  in  the 
statute  or  in  the  treaty.”  91 

Since  treaties  that  are  self-executing,  or  treaties  sup- 
plemented by  acts  of  Congress  constitute,  together  with 
the  Constitution  and  acts  of  Congress  the  supreme  law  of 
the  land,  they  are,  while  in  force,  and  to  the  extent  of  their 
provisions,  the  authoritative  expression  of  the  nation  as 
to  the  rights  and  obligations  conferred  upon  aliens  there- 
under ; and  to  that  extent  may  be  invoked  by  aliens  within 
their  provisions.  But  the  rights  granted  by  such  inter- 
national agreements  cannot  be  deemed  to  become  so  com- 
pletely vested  in  the  recipients  thereof  under  the  terms  of 
the  treaty,  as  to  prohibit  their  revocation  when  the  needs 
of  the  nation  require  such  action,  and,  as  has  been  seen, 
this  may  be  done  by  subsequent  treaties  or  by  a subsequent 
act  of  Congress.  However,  moral  justification  for  such 

90185  U.  S.  213,  46  Law  Ed.  878. 

oiCiting  Foster  v.  Neilson,  2 Pet.  253,  314,  7 Law  Ed.  415,  435;  the 
Cherokee  Tobacco,  11  Wall.  616,  20  Law  Ed.  227,  229;  Head  Money  Cases, 
112  U.  S.  580,  599,  28  Law  Ed.  798,  804;  Whitney  v.  Robertson,  124  U.  S. 
190,  194,  31  Law  Ed.  386,  388;  Taylor  v.  Morton,  2 Curt.  C.  C.  454,  459, 
Fed.  Case  No.  13799;  Clinton  Bridge  Case,  Woolw.  155;  Fed.  Cases  No.  2, 
900;  Ropes  v.  Clinch,  8 Blatch,  304;  Fed.  Case  No.  12041;  2 Story  Const. 
Sec.  1838. 


50  The  Exclusion  and  Expulsion  of  Aliens. 

action  would  seem  to  be  found — in  the  absence  of  a breach 
of  faith  by  the  other  contracting  party — only  when  exist- 
ing conditions  agreed  to  in  the  treaty  come  to  constitute 
a menace  or  a burden  to  the  state,  the  full  effect  of  which 
was  not  appreciated  at  the  time  of  entering  into  the  con- 
tract. “Unexpected  events  may  call  for  a change  in  the 
policy  of  the  country.  Neglect  or  violation  of  stipulations 
on  the  part  of  the  other  contracting  party  may  require 
corresponding  action  on  our  part.  When  a reciprocal  en- 
gagement is  not  carried  out  by  one  of  the  contracting  par- 
ties the  other  may  also  decline  to  keep  the  corresponding 
engagement.”  92 

As  in  the  case  of  statutes  the  repeal  of  treaties  by  im- 
plication is  not  viewed  with  favor  by  the  courts.  Said 
Mr.  Justice  Harlan:  “In  the  case  of  statutes  alleged  to 
be  inconsistent  with  each  other  in  whole  or  in  part,  the 
rule  is  well  established  that  effect  must  be  given  to  both, 
if  by  any  reasonable  interpretation  that  can  be  done ; that 
‘there  must  be  a positive  repugnancy  between  the  pro- 
visions of  the  new  law  and  those  of  the  old;  and  even 
then  the  old  law  is  repealed  by  implication  only  pro  tanto 
to  the  extent  of  the  repugnancy;’  and  that  ‘if  harmony  is 
impossible,  and  only  in  that  event,  the  former  law  is  re- 
pealed in  part  or  wholly  as  the  case  may  be 9 The 

same  rules  have  been  applied  where  the  claim  was  that  an 
act  of  Congress  had  abrogated  some  of  the  provisions  of  a 
prior  treaty  between  the  United  States  and  China  (Chew 
Heong  v.  United  States,  112  U.  S.  550).  In  that  case  it 
was  held  that  the  treaty  could  stand  with  the  subsequent 
statutes,  and  that  consequently,  it  was  enforced.  Like 
principles  must  control  when  the  question  of  whether  an 
act  of  Congress  has  been  superseded  in  whole  or  in  part 
by  a subsequent  treaty.  A statute  enacted  by  Congress 
expresses  the  will  of  the  people  of  the  United  States  in 
the  most  solemn  form.  If  not  repugnant  to  the  Constitu- 

92Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  32  Law  Ed.  1068,  1074. 


Power  and  Methods. 


51 


tion  it  is  made  by  that  law  a part  of  the  supreme  law  of 
the  land  and  should  never  be  held  to  be  displaced  by  a 
treaty,  subsequently  concluded  unless  it  is  impossible  for 
both  to  stand  together  and  be  enforced.”93 

D.  Regulation  of  Immigration  by  Legislative  Enact- 
ment. 

1.  The  Immigration  Acts. 

(A.)  The  Alien  Act  of  1798.94 

The  first  act  passed  by  the  Congress  of  the  United  States 
authorizing  the  deportation  of  undesirable  aliens  from  this 
country  was  approved  June  25,  1798.  “That  act,”  says 
Mr.  Justice  Field,95  “vested  in  the  President  power  to 
order  all  such  aliens  as  he  should  adjudge  dangerous  to 
the  peace  and  safety  of  the  United  States,  or  should  have 
reasonable  grounds  to  suspect  were  concerned  in  any 
treasonable  or  secret  machinations  against  the  government 
to  depart  out  of  the  territory  of  the  United  States  within 
such  time  as  should  be  expressed  in  his  order.  And  in 
case  any  alien  when  thus  ordered  to  depart  should  be 
found  at  large  within  the  United  States  after  the  term  lim- 
ited in  the  order,  not  having  obtained  a license  from  the 
President  to  reside  therein,  or  having  obtained  such  license 
should  not  have  conformed  thereto,  he  should  on  convic- 
tion thereon  be  imprisoned  for  a term  not  exceeding  three 
years,  and  should  never  afterwards  be  admitted  to  become 
a citizen  of  the  United  States;  with  a proviso  that  if  the 
alien  thus  ordered  to  depart  should  prove  to  the  satisfac- 

93United  States  v.  Lee  Yen  Tai,  185  U.  S.  213,  46  Law  Ed.  878,  citing 
Wood  v.  United  States,  16  Pet.  342,  10  Law  Ed.  987;  United  States  v. 
Tynan,  11  Wall.  88,  20  Law  Ed.  153 ; South  Carolina  v.  Stoll,  17  Wall.  425, 
21  Law  Ed.  650;  Frost  v.  Wenie,  157  U.  S.  46,  39  Law  Ed.  614;  and  see 
case  of  the  Chinese  merchant,  13  Fed.  605;  in  re  Ah  Lung,  18  Fed.  28. 

Stat.  at  L.  577. 

95Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905;  Dis- 
senting Opinion. 


52 


The  Exclusion  and  Expulsion  of  Aliens. 


tion  of  the  President,06  by  evidence  to  be  taken  before  such 
person  or  persons  as  he  should  direct,  that  no  injury  or 
danger  to  the  United  States  would  arise  from  suffering 
him  to  reside  therein,  the  President  might  grant  a license 
to  him  to  remain  within  the  United  States  for  such  time 
as  he  should  judge  proper  and  at  such  place  as  he  should 
designate.  The  act  also  provided  that  the  President  might 
require  such  alien  to  enter  into  a bond  to  the  United 
States  in  such  penal  sum  as  he  might  direct,  with  one  or 
more  sureties  to  the  satisfaction  of  the  person  authorized 
by  the  President  to  take  the  same,  continued  for  his  good 
behavior  during  his  residence  in  the  United  States,  and  not 
to  violate  his  license,  which  the  President  might  revoke 
whenever  he  should  think  proper.  The  act  also  provided 
that  it  should  be  lawful  for  the  President,  whenever  he 
deemed  it  necessary  for  the  public  safety,  to  order  to  be 
removed  out  of  the  territory  of  the  United  States  any  alien 
in  prison  in  pursuance  of  the  act,  and  to  cause  to  be  ar- 
rested and  sent  out  of  the  United  States  such  aliens  as 
may  have  been  ordered  to  depart,  and  had  not  obtained  a 
license,  in  all  cases  where,  in  the  opinion  of  the  President, 
the  public  safety  required  a speedy  removal.” 

The  voluntary  return  of  an  alien  thus  removed  or  sent 

^Section  12  of  the  Act  of  May  5,  1882,  provided  that  any  Chinese  person 
found  unlawfully  in  the  United  States  should  be  removed  therefrom  to  the 
country  whence  he  came,  by  direction  of  the  President  after  being  found 
not  lawfully  entitled  to  remain  after  a hearing  by  a justice,  judge  or  com- 
missioner. After  being  so  found  he  was  to  be  detained  a reasonable  time  so 
that  the  President  might  have  an  opportunity  to  perform  the  duty  im- 
posed on  him  by  the  act.  The  order  of  the  President  might  be  general  or 
special,  retrospective  or  prospective.  But  the  authority  of  the  President 
was  limited  to  ordering  the  removal;  he  had  no  power  to  revise  the  judg- 
ment of  deportation.  It  was  held  that  he  might  by  a general  order  directed 
to  the  marshal  or  perhaps  the  collector  direct  that  all  persons  thus  found 
to  be  unlawfully  here  shall  be  removed,  and  instruct  the  officer  to  take  the 
necessary  steps  incident  to  such  removal.  In  re  Chow  Goo  Pooi,  25  Fed.  77. 
The  amending  Act  of  July  5,  1884,  merely  provides  that  any  Chinese  person 
found  unlawfully  within  the  United  States  shall  be  caused  to  be  removed 
therefrom  at  the  cost  of  the  United  States  after  being  adjudged  to  be  un- 
lawfully in  the  country. 


Power  and  Methods. 


53 


out  of  the  country  was  penalized  by  imprisonment  of  such 
duration  as  the  President  might  deem  required  by  the 
interests  of  the  public  safety,  provided  such  return  had 
been  without  permission  granted  by  the  President.  Sec- 
tion 5 of  the  act  provided  that  every  alien  thus  removed 
might  take  with  him  such  part  of  his  goods  and  chattels 
and  other  property  as  he  might  find  convenient,  and  that 
all  property  left  by  him  in  the  United  States  should  re- 
main subject  to  his  order  and  disposal.  This  provision  is 
of  peculiar  interest  because  it  is  the  only  one  of  its  kind 
in  the  long  list  of  exclusion  and  immigration  acts  the  first 
of  which  was  to  be  enacted  by  Congress  eighty-four  years 
later. 

Jefferson,  Madison  and  other  jurists  and  statesmen  of 
recognized  ability  denounced  the  act,  not  only  as  being 
unconstitutional,  but  as  opposed  to  recognized  precepts  of 
international  law  adopted  and  cherished  by  civilized  na- 
tions. It  was  characterized  as  a war  measure  by  John 
Adams,  at  that  time  President  of  the  United  States,  who 
opposed  the  bill  and  against  whom  the  responsibility  for 
its  passage  was  charged;97  and  the  general  assembly  of 
Virginia  “declared  that  it  exercised  a power  nowhere 
delegated  to  the  Federal  Government.”  98  “The  duration 
of  the  act,”  continues  Mr.  Justice  Field,  “was  limited  to 
two  years,  and  it  has  ever  since  been  the  subject  of  uni- 
versal condemnation.” 99  He  cites  Elliott’s  Debates,  to 
the  effect  that  the  distinction  between  alien  enemies  and 
alien  friends  is  a clear  and  conclusive  answer  to  the  con- 
tention, that  by  the  law  of  nations,  aliens  may  be  removed 
at  discretion  for  offences  against  that  law,  that  Congress 
is  authorized  to  define  and  punish  such  offences,  and  that 
to  be  dangerous  to  the  peace  of  society  is,  in  aliens,  one 
of  those  offenses;  and  that  alien  friends,  except  in  the 

97Vol.  9 of  his  works,  p.  291;  Fong  Yue  Ting  v.  United  States,  149  U.  S. 
698,  747,  37  Law  Ed.  905. 

®sFong  Yue  Ting,  Ibid,  p.  748;  Elliott’s  Debates,  528. 

"Fong  Yue  Ting,  Ibid,  p.  750. 


54  The  Exclusion  and  Expulsion  of  Aliens. 

single  case  of  public  ministers,  are  under  the  municipal 
law,  and  must  be  tried  and  punished  according  to  that  law 
only. 

However  meritorious  or  well  chosen  these  arguments 
may  have  been  in  their  application  to  the  Alien  Act  of 
1798,  they  have  not  stood  the  test  of  judicial  analysis 
brought  to  bear  in  the  consideration  of  the  validity  and 
effect  of  the  Chinese  exclusion  and  immigration  acts.  The 
validity  of  the  distinction  between  alien  friends  and  alien 
enemies,  with  regard  to  whether  or  not  they  are  subject 
to  expulsion  or  exclusion  by  the  state  in  which  they  have 
acquired  a domicile  was  denied  in  the  very  case  under  dis- 
cussion.100 The  court,  speaking  through  Mr.  Justice 
Gray,  asserted  the  inherent  and  inalienable  right  of  every 
sovereign  and  independent  nation  to  exclude  or  expel  all 
aliens,  or  any  class  of  aliens,  absolutely,  or  upon  certain 
conditions,  in  war  or  in  peace,  and  described  this  right  as 
one  essential  to  the  safety,  independence,  and  welfare  of 
the  country  exercising  it.  To  the  suggestion  that  nowhere 
were  such  powers  delegated  to  Congress  by  the  states  it 
may  be  replied  that  the  states,  by  the  very  act  of  uniting 
and  thus  creating  a national  community  and  adding  a new 
member  to  the  family  of  nations,  brought  into  being  a 
political  entity  the  attributes  of  which  were  henceforth 
to  be  determined,  in  an  international  sense  at  least,  in 
accordance  with  the  principles  of  the  law  of  nations.  For 
the  rest,  the  question  of  whether  the  Alien  Act  was  consti- 
tutional or  the  reverse  is  of  little  profit  in  connection  with 
the  present  subject.  “It  is  enough  to  say,”  remarks  the 
Court  in  the  Chinese  Exclusion  Case,1  that  it  is  entirely 
different  from  the  act  before  us  (the  Exclusion  Act  of 
1882),  and  the  validity  of  its  provisions  was  never  brought 
to  the  test  of  judicial  decision  in  the  courts  of  the  United 
States.”  And  in  a much  later  case  it  was  said:  “Refer- 
ence was  made  by  counsel  to  the  Alien  Law  of  June  25, 

looUong  Yue  Ting,  Ibid,  p.  711. 

iChae  Chan  Ping  v.  United  States,  130  U.  S.  610,  32  Law  Ed.  1077. 


Power  and  Methods. 


55 


1789,  but  we  do  not  tbink  that  the  controversy  over  that 
law  (and  the  sedition  law)  and  the  opinions  expressed  at 
the  time  against  its  authority  have  any  bearing  upon  this 
case,  which  involves  an  act2  couched  in  entirely  different 
terms,  and  embracing  an  entirely  different  purpose.”  3 

(B.)  The  Coolie  Trade  Acts  of  1862  and  1869.4 

On  February  19,  1862,  Congress  passed  an  act,  entitled 
“An  act  to  prohibit  the  coolie  trade  by  American  citizens  in 
American  vessels.”  This  act  prohibited  the  procuring  from 
any  port  or  place  in  the  United  States,  or  from  any  other 
port  or  place,  the  inhabitants  or  subjects  of  China  known 
as  “coolies”  to  be  transported  to  any  foreign  port,  or  to  be 
disposed  of,  or  sold,  or  transferred  for  any  term  of  years, 
or  to  be  held  to  service  or  labor.  But  it  was  provided  that 
nothing  in  the  act  was  to  be  taken  to  apply  to  any  free 
and  voluntary  emigration  on  the  part  of  Chinese  persons, 
and  a consular  certificate  was  required  as  evidence  to 
show  that  the  emigration  was  the  voluntary  act  of  the 
individual  who  had  left  China.  The  Act  of  February  9, 
1869,  extended  the  prior  act  so  as  to  include  and  embrace 
the  inhabitants  and  subjects  of  Japan,  or  of  any  other 
Oriental  country,  known  as  coolies,  in  the  same  manner 
and  to  the  same  extent  as  such  act  and  its  provisions  ap- 
plied to  the  inhabitants  and  subjects  of  China. 

(C.)  Act  of  May  31,  1870.5 

Section  16  of  this  act,  entitled  “An  act  to  enforce  the 
right  of  citizens  of  the  United  States  to  vote  in  the  states 
of  this  Union,  and  for  other  purposes,”  provided  that  “No 
tax  or  charge  shall  be  imposed  or  enforced  by  any  state 
upon  any  person  immigrating  thereto  from  a foreign  coun- 

2Imnrigration  Act  of  March  3,  1903. 

3Turner  v.  Williams,  194  U.  S.  279,  49  Law  Ed.  979. 

412  Stat.  at  L.  340;  15  Stat.  at  L.  269. 

516  Stat.  at  L.  144. 


56  The  Exclusion  and  Expulsion  of  Aliens. 

try  which  is  not  equally  imposed  and  enforced  upon  every 
person  immigrating  to  such  state  from  any  other  foreign 
country,  and  any  law  of  any  state  in  conflict  with  this 
provision  is  hereby  declared  null  and  void.” 

Thus  the  general  purpose  of  this  act  and  of  those  regu- 
lating the  coolie  trade  was,  as  their  provisions  clearly 
show,  to  encourage,  rather  than  to  discourage,  the  immi- 
gration of  aliens  to  this  country. 

(D.)  State  Laws  Concerning  Immigration. 

Section  9 of  Article  I of  the  Constitution  of  the  United 
States  provides  that  “The  migration  or  importation  of 
such  persons  as  any  of  the  states  now  existing  shall  think 
proper  to  admit  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  one  thousand  eight  hundred  and  eight, 
but  a tax  or  duty  may  be  imposed  on  such  importations, 
not  exceeding  ten  dollars  for  each  person.”  While  the 
effect  of  this  section  is  to  show  that  the  migration  or  im- 
portation of  persons  into  this  country  was  one  the  control 
of  which,  after  the  date  set,  lay  with  Congress,  and  it  is 
equally  apparent  that,  at  least  during  that  period,  the 
admissibility  of  the  persons  immigrating  or  imported  to 
the  United  States  was  primarily  one  to  be  determined 
by  the  states  to  the  ports  of  which  they  were  brought. 
There  is  considerable  significance  in  the  fact  that  the  sec- 
tion does  not  employ  the  word  “aliens”  or  “foreigners”  in 
referring  to  the  subjects  of  the  section,  and  there  is  little 
reason  to  believe  that  “aliens”  as  the  term  is  used  to-day 
in  the  exclusion  and  immigration  acts  were  intended  to 
be  included  in  its  provisions.  “There  has  never  been  any 
doubt,”  says  the  Supreme  Court,  “that  this  clause  had  ex- 
clusive reference  to  persons  of  the  African  race.  The 
words  ‘migration’  and  ‘important’  refer  to  the  different 
conditions  of  this  race  as  regards  freedom  and  slavery. 
When  the  free  black  man  came,  he  migrated;  when  the 


Power  and  Methods. 


57 


slave  came  he  was  imported.”6  This  statement  was  made 
in  answer  to  the  contention  that  the  right  of  the  states 
to  pass  inspection  laws  included  the  right  to  impose  a tax 
on  immigrants  seeking  admission  to  the  various  states,  on 
the  ground  that  they  were  subjects  of  import  under  the 
Constitution,  and  consequently  subject  to  the  operation  of 
the  state  inspection  laws.  At  an  early  period  a number 
of  the  states,  among  them  New  York,  Massachusetts, 
Pennsylvania,  California  and  Louisiana,  passed  acts 
which,  under  the  guise  of  inspection  laws,  or  as  frank  and 
undisguised  prohibitive  legislation  forbade,  interfered 
with,  or  regulated  the  admission  of  aliens  into  their  re- 
spective territories.  The  validity  of  these  acts  was  gen- 
erally denied  either  by  the  state  courts  themselves  or  by 
the  Federal  courts  which  had  occasion  to  pass  on  the 
question.7 

(1.)  New  York. 

An  act  passed  by  the  New  York  legislature  on  February 
11,  1824,  provided  that  the  master  of  every  vessel  arriving 
in  New  York  from  any  foreign  port,  or  from  any  state  of 
the  United  States  other  than  New  York,  should  within 
twenty-four  hours  after  arrival,  make  a report  in  writing, 
containing  the  names,  ages  and  last  legal  settlement  of 
every  person  on  board  the  vessel  commanded  by  him  dur- 
ing the  voyage;  and  that  if  any  of  the  passengers  should 
have  gone  on  board  any  other  vessel  or  should  during  the 
voyage  have  been  landed  with  a view  to  proceed  to  New 
York  the  report  should  contain  a statement  to  that  effect. 
It  was  argued  that  this  provision  was  a regulation  of  com- 
merce, and  violative  of  the  commerce  clause  of  the  Con- 
stitution. But  it  was  held  by  a divided  court  that  it  was 
< 

^People  v.  Compagnie  Gen.  Trans.,  17  Otto  (107  U.  S.)  59,  27  Law  Ed.  383. 

7N.  T.  y.  Cornrns.  of  Emigration,  59  Hun.  624,  13  N.  Y.  Sup.  751;  Am. 
S.  S.  Co.  v.  Bd.  of  Health,  26  Int.  Rev.  Rec.  69 ; In  re  Ah  Fong,  Fed.  Case 
No.  102;  3 Sawy.  144,  16  Fed.  344,  8 Sawy.  640;  Lin  Sing  v.  Washburn,  20 
Cal.  534;  Ex  parte  Lippman,  35  Pac.  557;  The  Cynosure,  Fed.  Case  No. 
3529;  the  Wm.  Janis,  Fed.  Case  No.  17697. 


58  The  Exclusion  and  Expulsion  of  Aliens. 

not  a regulation  of  commerce,  but  of  a police  matter,  that 
persons  were  not  the  subject  of  commerce,  and  that  it  con- 
stituted merely  municipal  legislation,  which  it  was  not 
only  the  right  but  the  duty  of  the  state  to  enforce.8  In 
view  of  the  decisions  in  later  cases  involving  the  subject 
of  the  exclusive  power  of  Congress  over  all  questions  con- 
nected with  the  admission  of  aliens,  this  case  cannot  now 
be  regarded  as  authoritative.  The  statement  that  persons 
are  not  the  subject  of  commerce  certainly  does  not  repre- 
sent the  judicial  view  current  at  the  present  time;  for 
the  power  of  Congress  to  regulate  commerce  with  foreign 
nations  was  said  by  the  late  Chief  Justice  Fuller  in 
the  case  of  Turner  v.  Williams,9  to  include  the  entrance 
of  ships,  the  importation  of  goods  and  the  bringing  of 
persons  into  the  United  States.”  And  it  may  be  stated  in 
this  connection  that  both  Chief  Justice  Marshall  and 
Mr.  Story  were  of  the  opinion  that  the  provision  of  the 
New  York  act  in  question  was  no  more  or  less  than  a regu- 
lation of  commerce  by  a state  and  was  prohibited  by  the 
Federal  Constitution.10  In  that  case  this  same  New  York 
statute  and  a Louisiana  act,  containing  analogous  pro- 
visions required  that  the  master  or  owner  of  the  vessel 
bringing  aliens  to  the  state  should  give  a bond  for  every 
passenger  landed  in  the  penal  sum  of  three  hundred  dol- 
lars conditioned  to  indemnify  the  Commissioner  of  Immi- 
gration and  every  county,  city  and  town  in  the  state 
against  any  expense  for  the  relief  or  support  of  the  per- 
son named  in  the  bond  for  four  years  thereafter.  The 
court  held  that  to  require  the  payment  of  a tax  on  behalf 
of  a passenger  is  a tax  on  the  passengers  if  collected  from 
them,  or  a tax  on  the  vessel  or  the  owners  thereof  for  the 
exercise  of  the  right  of  landing  in  the  city.  The  statute 
was  held  void  insofar  as  it  imposed  the  tax  and  it  was  held 
that  “Nothing  was  gained  in  the  argument  by  calling  it 

8N.  Y.  v.  Milne,  36  U.  S.  102,  11  Pet.  102,  9 Law  Ed.  648. 

9194  U.  S.  279,  48  Law  Ed.  979. 

i°Henderson  v.  The  Mayor,  2 Otto,  92  U.  S.  259,  23  Law  Ed.  543. 


Power  and  Methods. 


59 


the  police  power”  as  “whenever  the  statute  of  a state  in- 
vades the  domain  of  legislation  which  belongs  exclusively 
to  the  United  States,  it  is  void,  no  matter  under  what 
class  of  powers  it  may  fall  or  how  closely  allied  to  powers 
conceded  to  belong  to  the  states.” 

( 2. ) Massachusetts. 

By  its  Act  of  April  20,  1837,  the  Massachusetts  legis- 
lature provided  that  no  alien  passengers  should  be  landed 
until  the  sum  of  two  dollars  should  have  been  paid  to  the 
boarding  officer  for  each  one  so  landing,  and  aliens  likely 
to  become  paupers  were  prohibited  from  landing  alto- 
gether unless  bond  were  given  to  secure  the  city,  or  the 
state,  against  expenditures  for  their  support.  This  act, 
like  the  New  York  statute  in  the  case  of  Henderson  v. 
The  Mayor,  supra , was  held  by  the  Supreme  Court  of  the 
United  States  to  be  unconstitutional  and  void.11 

(3.)  California. 

Later  the  constitutionality  of  a California  statute  was 
attacked  on  the  same  ground.  This  statute  did  not  re- 
quire a bond  for  every  alien  passenger  or  commutation  in 
money,  as  did  the  statutes  of  New  York  and  Massachu- 
setts; but  only  for  certain  enumerated  classes  amongst 
which  were  “lewd  and  debauched  women ;”  but  it  required 
an  examination  of  passengers  coming  to  a port  in  the 
state  from  any  foreign  port  or  place,  and  provided  for  a 
charge  of  seventy-five  cents  for  every  examination.  The 
effect  was,  says  the  court  in  Chy  Lung  v.  Freeman,12  to 
make  it  possible  for  the  Commissioner  of  Immigration  ar- 
bitrarily to  designate  certain  persons  as  belonging  to  the 
objectionable  classes,  to  require  the  master  of  the  vessel 
to  fill  up  and  sign  a bond  for  five  hundred  dollars  for  each 

uSmith  v.  Turner,  Norris  v.  Boston,  7 Howard,  48  U.  S.  283,  12  Law 
Ed.  702. 

1292  U.  S.  275,  23  Law  Ed.  550. 


60  The  Exclusion  and  Expulsion  of  Aliens. 

member  so  designated,  and  to  furnish  two  sureties  from 
the  residents  of  the  state  in  each  case;  to  pay  besides  five 
dollars  in  each  and  every  case  for  the  preparation  of  the 
bond  and  for  swearing  the  sureties;  and  an  extra  charge 
of  seventy-five  cents  for  the  examination  of  each  member 
of  the  class  thus  designated  by  the  Commissioner  and  for 
all  others  on  board  the  vessel.  The  court  held  that  the 
manifest  purpose  of  the  act  was  “not  to  obtain  indemnity, 

but  money It  is  idle  to  pursue  the  criticism.  In 

any  view  which  we  can  take  of  this  statute  it  is  in  conflict 
with  the  Constitution  of  the  United  States  and  therefore 
void.” 

In  spite  of  these  decisions  the  New  York  legislature 
passed,  on  May  31,  1881,  an  act  providing  for  the  imposi- 
tion of  a tax  of  one  dollar  for  each  and  every  passenger 
who  should  come  by  vessel  from  a foreign  port  to  the  port 
of  New  York.  It  was  claimed  that  this  was  an  inspection 
law  but  the  Supreme  Court  did  not  agree  with  this  view. 
“ A state  cannot,”  said  the  court,  “make  a law  designed  to 
raise  money  to  support  paupers,  to  detect  or  prevent  crime, 
to  guard  against  disease,  and  to  care  for  the  sick  an  in- 
spection law  within  the  constitutional  meaning  of  that 
word  by  calling  it  so  in  the  title.”  This  case  was  decided 
October  9,  1882,  after  the  passage  of  the  immigration  act 
of  August  3 of  that  year,  and  the  court  pointed  out,  aside 
from  the  innate  want  of  power  in  states  constitutionally 
to  pass  such  a statute,  the  additional  fact  that  the  Act  of 
Congress  of  1882  “covers  the  same  ground  as  the  New 
York  statute,  and  they  cannot  co-exist.”  13 

It  has  been  held,  however,  that  the  detention  and  the  dis- 
infection of  immigrants  by  order  of  a state  board  of  health, 
with  the  purpose  of  preventing  the  spread  of  infectious 

ispeople  v.  Compagnie  Generate  Transatlantique,  17  Otto,  107  U.  S.  59, 
27  Law  Ed.  383. 


Powee  and  Methods. 


61 


diseases,  is  not  a regulation  of  foreign  commerce  by  a state 
within  the  meaning  of  the  constitutional  prohibition.14 

(E.)  The  Act  of  March  3, 1875.15 

This  act  is  entitled  “An  act  supplementary  to  the  acts 
in  relation  to  immigration,”  and  refers  in  its  first  section 
to  title  XXIX  of  the  Revised  Code,  entitled  “Immigra- 
tion.” Attention  has  been  called  to  the  fact16  that  the 
purport  of  the  acts  of  Congress  passed  up  to  this  time  was 
to  encourage  the  voluntary  immigration  of  aliens  to  this 
country,  including  members  of  the  Mongolian  races.  True, 
the  Act  of  February  19,  1862,  provided  for  the  issuance  of 
certificates  to  aliens  immigrating  from  China  to  this  coun- 
try, and  by  the  Act  of  February  9,  1869,  this  provision 
was  made  applicable  to  the  subjects  of  Japan  and  any 
other  oriental  countries;  but  the  object  of  this  provision 
seems  to  have  been  the  protection  of  the  voluntary  immi- 
grant, and  hence,  perhaps  an  inducement  to  take  advant- 
age of  the  right  to  immigrate  so  plainly  alleged  in  the 
statute;  and  the  certificates  issued  thereunder  served  a 
very  different  purpose  from  the  certificate  of  identity,  pos- 
session of  which  was,  seven  years  later,  first  made  obliga- 
tory on  Chinese  persons  seeking  admission  into  the  United 
States  under  the  Chinese  exclusion  acts.  But  the  Act  of 
1875  provided  that  the  certificates  therein  prescribed 
should  not  be  issued  to  aliens  who  had  entered  into  agree- 
ments for  a term  of  service  within  the  United  States  for 
lewd  and  immoral  purposes.  The  importation  of  foreign 
women  into  the  United  States  for  the  purposes  of  pros- 
titution is  by  such  act  prohibited  and  made  a felony. 
And,  whereas  engaging  in  the  Coolie  trade,  irrespective 
of  the  ports  to  which  the  laborers  were  taken  by  those  par- 
ticipating in  the  venture,  was  prohibited  to  citizens  of  the 

^Minneapolis,  St.  Paul  & S.  Ste.  Marie  Bailway  Company  v.  Milner,  57 
Fed.  276. 

1518  Stat.  at  L.  477. 

i *Ante,  p.  56.  ' : 


62  The  Exclusion  and  Expulsion  of  Aliens. 

United  States  and  foreigners  residing  therein  by  the  earlier 
act,  the  Act  of  1875  prohibits  the  making  of  a contract  by 
any  person  “to  supply  to  another  the  labor  of  any  coolie 
or  other  person  brought  into  the  United  States.” 

Section  5 made  it  unlawful  for  alien  persons  “under- 
going a sentence  for  conviction  in  their  own  country  of 
felonious  crimes  other  than  political,  or  growing  out  of 
the  result  of  such  political  offenses,  or  whose  sentence  has 
been  remitted  on  condition  of  their  emigration,”  and 
women  “imported  for  the  purpose  of  prostitution”  to  “im- 
migrate into  the  United  States.”  An  alien  found  by  the 
collector  of  the  port  at  which  the  vessel  carrying  him  ar- 
rived to  be  a member  of  the  classes  whose  entry  was  pro- 
hibited by  the  act  was  forbidden  to  leave  the  vessel  with- 
out the  collector’s  permission,  nor  was  he  allowed  to  land 
except  in  obedience  to  a judicial  process  issued  pursuant 
to  law.  And  it  is  interesting,  in  the  light  of  the  provisions 
of  subsequent  immigration  acts  and  of  interpretations 
thereof  by  the  courts,  to  note  that  the  Act  of  1875  provides 
that  should  any  alien  dissatisfied  with  the  excluding  de- 
cision of  the  collector,  “apply  for  release  or  other  remedy 
to  any  proper  court  or  judge”  for  the  purpose  of  testing 
the  correctness  of  the  inspector’s  decision,  it  should  be  the 
duty  of  the  collector  at  the  port  to  detain  the  vessel  until 
a judicial  hearing  and  determination  of  the  matter  was 
had. 

(F.)  The  Act  of  August  3,  1882.17 

This  act  provided  in  its  first  section  that  “there  shall  be 
levied,  collected  and  paid  a duty  of  fifty  cents  for  each  and 
every  passenger  not  a citizen  of  the  United  States  who 
shall  come  by  steam  or  sail  vessel  from  a foreign  port  to 
any  port  of  the  United  States,”  Congress  thereby  exercis- 
ing for  the  first  time  in  the  history  of  our  immigration  leg- 
islation the  power  which,  as  prior  decisions  herein  cited 
show,  the  states  attempted  in  vain  to  exert.  The  Secre- 


1722  Stat.  at  L.  214. 


Power  and  Methods. 


63 


tary  of  the  Treasury  was  charged  with  the  duty  of  execut- 
ing the  provisions  of  the  act  and  was  given  authority  under 
it  to  enter  into  contracts  with  such  state  commission, 
board  or  officer  as  might  be  designated  by  the  governor  of 
any  state  for  that  purpose  to  take  charge  of  the  local 
affairs  of  immigration  in  the  ports  of  said  states.  The 
state  commission,  board,  or  officer  so  designated,  was  to 
examine  into  the  condition  of  passengers  arriving  at  the 
ports  of  the  states  by  water,  and  was  authorized  to  go  on 
board  of  and  through  any  vessel  or  ship  for  that  purpose. 
If  on  examination  the  proper  officers  found  among  the 
passengers  a convict,  lunatic,  idiot,  or  person  unable  to 
take  care  of  himself  or  herself  without  becoming  a public 
charge  they  were  to  report  this  fact  to  the  collector  of  the 
port,  and,  under  the  law,  such  person  could  not  land; 
hereby  a co-operation  between  the  state  and  Federal  au- 
thorities which,  however,  was  soon  to  disappear  with  the 
provisions  of  subsequent  acts.  The  powers  exercised  by 
the  state  and  Federal  authorities  could  not  be  mutually 
delegated18  and  the  board  was  confined  in  rendering  its 
excluding  decisions  to  classes  enumerated  as  being  subject 
to  exclusion  under  the  Federal  statute;  and  having  ren- 
dered its  decision  touching  the  status  of  an  alien  seeking 
admission  the  decision  was  not  subject  to  reversal  by  the 
collector  of  customs,19  notwithstanding  that  under  the  law 
the  commissioners  were  to  report  their  findings  to  him.20 

The  act  provided  for  the  return  of  all  foreign  convicts 
except  those  convicted  of  political  offenses,  and  added  to 
the  list  of  persons  excludable  under  the  Act  of  1875,  luna- 
tics, idiots  and  persons  unable  to  take  care  of  themselves 
without  becoming  public  charges. 

18In  re  Murnane  et  al.,  39  Fed.  99. 

19In  re  Palagano,  38  Fed.  580. 

20 In  re  Day,  27  Fed.  678;  and  see  In  re  Bucciarello  et  al.,  45  Feb.  463, 
holding  that  the  determination  of  the  alien’s  admissibility  lay,  under  the 
Act  of  February  23,  1887,  with  the  superintendent  of  immigration  at  the 
port  of  New  York  and  not  with  the  collector  of  customs. 


64  The  Exclusion  and  Expulsion  of  Aliens. 

The  constitutionality  of  the  act  was  made  the  subject  of 
an  attack  based  on  two  main  grounds;  first,  that  the  tax 
or  duty  of  fifty  cents  was  not  levied  to  provide  for  the 
common  defense  or  welfare  of  the  United  States  and  was 
not  uniform  throughout  the  United  States;  and,  second, 
that  the  act  violated  the  provisions  of  numerous  treaties 
entered  into  between  the  United  States  and  various  friendly 
nations.21  The  first  objection  was  disposed  of  by  the  Su- 
preme Court  with  the  statement  that  “the  tax  in  this  case, 
which,  as  far  as  it  can  be  called  a tax,  is  an  excise  duty  on 
the  business  of  bringing  passengers  from  foreign  countries 
into  this  by  ocean  navigation,  is  uniform  and  operates  pre- 
cisely alike  in  every  port  of  the  United  States  where  such 
passengers  can  be  landed ;”  and  held  furthermore  that  the 
power  exercised  in  this  instance  was  not  the  taxing  power 
but  “a  mere  incident  of  the  regulation  of  commerce.”  As 
to  the  second,  it  was  held  that  “so  far  as  the  provisions  of 
the  act  may  be  found  to  be  in  conflict  with  any  treaty  with 
a foreign  nation  they  must  prevail  in  all  the  judicial 
courts  of  this  country.”  The  superiority  of  existing 
treaties  over  subsequent  acts  of  Congress  was  thus  de- 
nied.22 

( G. ) The  Act  of  February  26,  1885, 23  as  Amended  by  the 
Act  of  February  23,  1887.24 

This  statute  was  entitled  “An  act  to  prohibit  the  im- 
portation and  immigration  of  foreigners  and  aliens  under 
contract  or  agreement  to  perform  labor  in  the  United 
States,  its  territories,  and  the  District  of  Columbia.” 

Before  adopting  its  present  prohibitive  policy  toward 
the  importation  of  alien  laborers,  under  contract,  the  Fed- 
eral government  for  a brief  period  pursued  an  exactly 
opposite  course.  In  his  message  to  Congress,  December  8, 
1864,  President  Lincoln  strongly  recommended  that  a sys- 

2iHead  Money  Cases,  112  U.  S.  580,  28  Law  Ed.  798. 

22See  ante  p.  45. 

2323  Stat.  at  L.  332. 

2424  Stat.  at  L.  414. 


Power  and  Methods. 


65 


tem  for  the  encouragement  of  immigration  be  established. 
He  stated  that  there  was  a great  deficiency  of  laborers  in 
every  field  of  industry  and  that  “tens  of  thousands  of  per- 
sons destitute  of  remunerative  occupations,  are  thronging 
our  foreign  consulates  and  offering  to  emigrate  to  the 
United  States  if  essential,  but  very  cheap,  assistance  can 
be  afforded.”  The  President’s  recommendation  was  con- 
sidered by  a select  committee  of  the  House  of  Representa- 
tives, which  brought  in  a favorable  bill  and  recommended 
its  passage  on  the  ground  that  the  vast  number  of  labor- 
ing men  who  had  left  their  peaceful  pursuits  for  the  pur- 
suits of  war  had  created  a shortage  in  the  labor  supply 
which  was  being  seriously  felt  in  every  section  of  the 
United  States.  The  committee  concluded  that  this  de- 
mand for  labor  could  be  supplied  only  by  immigration. 

To  remedy  the  situation,  Congress  enacted  the  law  of 
July  4,  1864. 25  This  law  provided  that  contracts  made  in 
foreign  countries  whereby  emigrants  to  the  United  States 
pledged  their  wages  for  a term  not  exceeding  one  year 
to  repay  the  expense  of  emigration  should  be  valid,  and 
should  not  in  any  way  be  considered  as  creating  a condi* 
tion  of  slavery  or  servitude.  The  law  created  the  office 
of  Commissioner  of  Immigration,  to  be  under  the  Secre- 
tary of  State,  and  provided  for  an  office  in  New  York  City 
charged  with  arranging  for  the  transportation  of  immi- 
grants to  their  destination  in  the  United  States  and  pro- 
tecting them  from  imposition  and  fraud. 

In  1866,  the  House  of  Representatives  passed  a bill  to 
extend  the  scope  of  the  law  of  1864  by  creating  at  various 
Atlantic  ports  immigration  officers  similar  to  that  in  op- 
eration at  New  York.  The  Senate,  however,  did  not  agree 
to  this  proposed  amendment,  and  in  the  discussion  con- 
cerning it  the  law  itself  was  declared  impolitic,  if  not  un- 
constitutional, and  at  one  time  it  was  in  danger  of  repeal. 

2513  Stat.  at  L.  385. 


66  The  Exclusion  and  Expulsion  of  Aliens. 

The  law  of  1864  was  repealed  in  1868,  and,  although  sev- 
eral times  proposed  in  bills  introduced  in  Congress,  the 
Federal  Government  never  again  attempted  the  artificial 
promotion  of  immigration.  In  fact  the  operation  of  the 
law  of  1864  and  the  agitation  growing  therefrom  undoubt- 
edly were  among  the  factors  that  eventually  led  to  the 
passage  of  the  alien  contract  labor  law  of  1885. 

It  was  the  first  to  have  for  its  main  object  the  exclusion 
of  foreign  laborers  from  the  United  States  and  that  this 
was  its  chief  purpose,  and  that  its  provisions,  broad 
though  they  were,  did  not  apply  to  foreigners  coming  to 
the  United  States  under  contract  who  were  not  of  the 
laboring  classes,  was  held  by  the  Supreme  Court  in  the 
case  of  Church  of  the  Holy  Trinity  v.  United  States.26 
Commenting  on  the  title  of  the  act,  the  court  says : “Ob- 
viously the  thought  expressed  in  this  reaches  only  to  the 
work  of  the  manual  laborer  as  distinguished  from  that  of 

the  professional  man We  find,  therefore,  that  the 

title  of  the  act,  the  evil  which  was  intended  to  be  remedied, 
the  circumstances  surrounding  the  appeal  to  Congress  and 
the  reports  of  the  committee  of  the  House  all  concur  in 
affirming  that  the  intent  of  Congress  was  simply  to  stay 
the  influx  of  this  cheap  unskilled  labor and  held  that  it 
could  not  be  deemed  to  apply  to  ministers  of  the  gospel. 

The  act  prohibited  all  persons,  including  companies, 
partnerships,  and  corporations,  from  in  any  way  assisting 
or  encouraging  the  importation  or  migration  of  aliens  into 
the  United  States  under  contract  or  agreement  made  pre- 
vious to  their  importation  or  migration  to  perform  labor 
or  service  of  any  kind  in  this  country,27  and  provided  that 
any  such  contract  thereafter  made  should  be  null  and 
void.28  Violations  of  section  1 were  made  punishable  with 
a fine  of  one  thousand  dollars  for  each  offense,29  and  the 

26143  U.  S.  457,  36  Law  Ed.  266. 

27Section  1. 

28Seetion  2. 

29Section  3. 


Power  and  Methods. 


67 


master  of  any  vessel  knowingly  bringing  such  a contract 
laborer  into  the  United  States  was  on  conviction  thereof 
to  be  held  guilty  of  a misdemeanor  and  subject  to  fine  or 
imprisonment.30  Section  5 provides  that  the  following 
aliens  shall  not  be  deemed  to  be  contract  laborers : skilled 
foreign  workmen  engaged  to  perform  labor  in  the  United 
States  in  or  upon  any  new  industry  not  at  that  time 
established  in  the  United  States,  provided  that  skilled 
labor  could  not  be  otherwise  obtained  for  that  purpose, 
professional  actors,  artists,  lecturers,  or  singers,  and  per- 
sons employed  strictly  as  personal  or  domestic  servants. 

The  act  was  amended  by  the  Act  of  February  23,  1887, 31 
and  by  the  Deficiency  Appropriation  Act  of  October  19, 
1888, 32  the  first  of  which  provided  for  the  return  of  all 
persons  included  in  the  prohibitions  of  the  Act  of  1885, 
and  the  second  of  which  provided  further  that  such  aliens 
might  be  returned  within  one  year  after  landing.33 

The  effect  of  these  three  acts,  as  their  titles  show, 
“was  primarily  to  prevent  the  importation  and  immigra- 
tion of  foreign  labor,  and  it  is  against  this  class  that  their 
provisions  were  plainly  directed.34  They  applied  generally 
to  the  manual  laborer,  as  distinguished  from  the  profes- 
sional man,  such  as  experts  in  chemistry,35  and  ministers 
of  the  gospel.36  An  under  coachman  was  held  to  be  in- 
cluded in  the  exempt  class  designated  as  personal  and  do- 
mestic servants;37  but  a person  entering  under  a contract 
to  labor  as  a farm  servant  was  held  not  to  come  within 
the  exception.38  The  purpose  of  this  act  being  to  put  a 

soSection  4. 

3i24  Stat.  at  L.  414. 

3225  Stat.  at  L.  565. 

33ln  re  Lifieri,  52  Fed.  293. 

34ln  re  Cummings,  32  Fed.  75. 

35United  States  v.  Laws,  163  U.  S.  256,  41  Law.  Ed.  151. 

36 Church  of  the  Holy  Trinity  v.  United  States,  143  U.  S.  457,  36  Law  Ed. 
226. 

37ln  re  Martorelli,  63  Fed.  437. 

38ln  re  Cummings,  32  Fed.  75. 


68  The  Exclusion  and  Expulsion  of  Aliens. 

stop  to  the  entry  of  cheap  and  unskilled  foreign  labor,  it 
was  held  not  to  apply  to  expert  drapers  and  window 
dressers;39  but  this  decision  was  criticised  in  an  opinion 
of  the  Attorney  General40  which  held  that  alien  lacemakers 
should  be  refused  a landing  in  the  United  States  when 
coming  here  for  the  purpose  of  employment  under  con- 
tract. As  to  the  application  of  the  appropriate  sections  of 
the  act  to  persons  entering  the  United  States  under  con- 
tract to  engage  in  a new  industry,  it  was  held  that  the 
manufacture  of  lace  curtains,  not  begun  before  the  tariff 
law  of  1890,  and  not  firmly  established  at  the  time  the 
parties  entered  under  contract  is  a new  industry,41  as  is  the 
manufacture  of  French  silk  stockings,  differing  in  appear- 
ance, quality  and  manufacture  from  anything  theretofore 
made.42 

The  Act  of  1885  was  held  constitutional  under  the  right 
of  Congress  to  regulate  commerce  with  foreign  nations;43 
and  it  necessarily  follows  that,  granting  the  power  to  dis- 
criminate as  to  which  classes  of  aliens  shall  be  admitted 
and  which  excluded,  Congress  has  the  power  to  punish 
persons  who  assist  in  the  introduction  of  members  of  the 
excluded  classes.44  Said  the  Supreme  Court,  in  the  case 
of  Lees  v.  United  States : 45  “Given  in  Congress  the  abso- 
lute power  to  exclude  aliens,  it  may  exclude  some  and 
admit  others,  and  the  reasons  for  its  discrimination  are 
not  open  to  challenge  in  the  courts.  Given  the  power  to 
exclude,  it  has  a right  to  make  the  exclusion  effective  by 
punishing  those  who  assist  in  introducing  or  attempting 
to  introduce  aliens  in  violation  of  its  prohibition.  The 
importation  of  alien  laborers  who  are  under  previous  con- 
tracts to  perform  labor  in  the  United  States  is  an  act  de- 

sflUnited  States  v.  Gay,  95  Fed.  226. 

<023  Op.  Atty.  Gen.  381,  Jan.  28,  1901. 

4iUnited  States  v.  Bromiley,  58  Fed.  554. 

42United  States  v.  McCallum,  44  Fed.  745. 

43United  States  v.  Craig,  28  Fed.  795. 

44Ex  parte  Gouyet,  175  Fed.  230. 

45150  United  States  476,  37  Law  Ed.  1150. 


Power  and  Methods. 


69 


nounced,  and  the  penalty  is  visited,  not  upon  the  alien 
laborer — although  by  the  amendment  of  February  23, 
1887,  he  is  to  be  returned  to  the  country  from  whence  he 
came — but  upon  the  party  assisting  in  the  importation.  If 
Congress  has  power  to  exclude  such  laborers,  as  by  the 
cases  cited  it  unquestionably  has,  it  has  the  power  to 
punish  any  one  who  assists  in  their  introduction.” 

To  give  a right  of  action  for  importing  aliens  contrary 
to  the  provisions  of  the  act  it  was  necessary  that  the  im- 
migrant, previous  to  becoming  a resident  of  the  United 
States,  must  have  entered  into  a contract  to  perform  labor 
or  service  in  this  country ; that  he  must  actually  have  mb 
grated  to  or  entered  the  United  States  in  pursuance  of 
such  contract,  and  that  the  defendant  must  have  prepaid 
his  transportation,  or  otherwise  assisted,  encouraged  or 
solicited  his  immigration,  knowing  that  he  had  entered 
into  the  illegal  contract;46  and  any  district  in  which  the 
defendant  might  be  found  might  be  made  the  situs  of  the 
civil  action  brought  again  him  for  such  violation.  It  was 
held  that  actions  for  the  recovery  of  penalties  incurred 
under  the  act  were  to  be  brought  in  the  District  court, 
although  the  act  provided  that  the  penalties  were  to  be 
recovered  as  “debts  of  like  amount  are  now  recovered  in 
the  Circuit  Courts  of  the  United  States.”  47  “When,”  says 
the  Supreme  Court,48  “it  is  remembered  that  a penalty 
may  be  recovered  by  indictment  or  information  in  a crim- 
inal action,  or  by  a civil  action  in  the  form  of  an  action  of 
debt,  and  also  that  the  Circuit  Courts  of  the  United  States 
are,  as  contradistinguished  from  the  District  Courts,  the 
Federal  Courts  of  original  jurisdiction,  the  significance 
of  this  clause  is  clear.  It  in  effect  provides  that  although 
the  recovery  of  a penalty  is  a proceeding  criminal  in  its 

^United  States  v.  Craig,  28  Fed.  795. 

^Rosenberg  v.  Union  Iron  Works,  109  Fed.  844;  and  might  be  properly- 
begun  by  capias  in  accordance  with  the  state  law.  United  States  v.  Ban- 
ister, 70  Fed.  44. 

48Lees  y.  United  States,  150  U.  S.  476,  37  Law  Ed.  1150. 


70 


The  Exclusion  and  Expulsion  of  Aliens. 


nature,  yet  in  this  class  of  cases  it  may  be  enforced  in  the 
same  manner  that  debts  are  recovered  in  the  ordinary  civil 
courts.” 


( H. ) The  Act  of  March  3,  1891.49 

This  act  was  entitled  “An  act  in  amendment  to  the 
various  acts  relative  to  immigration  and  the  importation 
of  aliens  under  contract  or  agreement  to  perform  labor,” 
and  was  not,  as  its  title  shows,  limited  in  its  operation 
to  the  exclusion  of  foreign  contract  labor,  as  was  the  Act 
of  1885,  but  constituted  legislation  having  for  its  object 
the  exclusion  not  only  of  a particular  class  of  foreigners, 
but  of  all  classes  whose  presence  in  this  country  was 
thought  by  Congress  to  be  obnoxious  or  injurious  to  mem- 
bers of  those  communities  which  the  objectionable  aliens 
sought  to  invade,  and  in  which  they  intended  to  take  up 
their  residence.50 

This  act  was  generally  held  to  be  operative  as  to  immi- 
grants only ; that  is,  to  aliens  who,  forsaking  their  former 
domicile,  come  to  the  United  States  for  the  purpose  of 
making  it  their  home ; and  not  to  apply  to  aliens  actually 
domiciled  in  the  United  States,  and  who,  after  a trip  be- 
yond the  territorial  limits  thereof  return  to  resume  a domi- 
cile already  acquired.51 

Classes  Excluded. 

In  addition  to  those  classes  already  excluded  by  former 
acts  this  act  denied  admission  to  paupers,  or  persons 
likely  to  become  a public  charge,  persons  suffering  from  a 
loathsome  or  dangerous  contagious  disease,  persons  who 
had  been  convicted  of  a felony  or  other  infamous  crime  or 
misdemeanor  involving  moral  turpitude,  polygamists,  and 
also  any  person  whose  ticket  or  passage  was  paid  for  with 

4926  Stat.  at  L.  1084. 

soUnited  States  v.  Sandrey,  48  Fed.  550. 

siUnited  States  v.  Burke,  99  Fed.  895;  In  re  Ota,  96  Fed.  487;  In  re 
Maiola,  67  Fed.  114;  In  re  Martorelli,  63  Fed.  437;  In  re  Panzara,  51  Fed. 
275. 


Power  and  Methods. 


71 


the  money  of  another  or  who  was  assisted  by  others  to 
come,  unless  it  was  affirmatively  and  satisfactorily  shown 
on  special  inquiry  that  such  person  did  not  belong  to  one 
of  the  foregoing  classes  or  to  the  class  of  contract  la- 
borers excluded  by  the  Act  of  1885.  The  section  enumerat- 
ing the  excluded  classes  was  held  to  have  no  application 
to  contract  laborers  as  a class  but  only  to  assisted  immi- 
grants and  to  the  classes  previously  named,  and  that  the 
assisted  immigrant  was  not  within  the  prohibition  of  the 
section  if  it  appeared  that  he  did  not  belong  to  the  “fore- 
going classes”  or  to  the  class  of  contract  laborers.52 

The  provision  touching  the  exclusion  of  convicts  op- 
erated in  favor  of  foreigners  sentenced  abroad  for  the  com- 
mission of  crimes  against  foreign  jurisdictions,  as  com- 
pared with  the  provisions  of  the  earlier  acts  on  the  subject, 
whereby  the  mere  fact  of  previous  conviction — provided 
that  it  had  not  been  for  a political  crime — was  sufficient  to 
exclude.63  Here  the  test  of  moral  turpitude  was  introduced 
for  the  first  time,  and  is  still  maintained  under  the  existing 
immigration  laws. 

Contract  Labor  Provisions. 

In  its  fifth  section  this  act  added  to  the  list  of  persons 
designated  by  the  Act  of  1885  as  those  to  whom  the  pro- 
visions touching  the  importation  of  foreign  labor  should 
not  apply,  ministers  of  any  denomination,  persons  belong- 
ing to  any  recognized  profession,  and  professors  for  col- 
leges or  seminaries.  In  the  case  of  United  States  v. 
Laws,54  the  Supreme  Court,  in  deciding  that  a chemist 
must  be  held  to  be  exempt  from  this  provision,  said,  “If  by 
the  terms  of  the  original  act  the  provisions  thereof  applied 
only  to  unskilled  laborers  whose  presence  simply  tended 
to  degrade  American  labor,  the  meaning  of  the  act  as 
amended  by  the  Act  of  1891  becomes,  if  possible,  still 

52In  re  Lifieri,  52  Fed.  293. 

53In  re  Aliano,  43  Fed.  517. 

«163  U.  S.  256,  41  Law.  Ed.  151. 


72  The  Exclusion  and  Expulsion  of  Aliens. 

plainer.  Now,  by  its  very  terms  it  is  not  intended  to  apply 
to  any  person  belonging  to  any  recognized  profession.  We 
think  a chemist  would  be  included  in  that  class.  Al- 
though the  study  of  chemistry  is  the  study  of  a science,  yet 
a chemist  who  occupies  himself  in  the  practical  use  of  his 
knowledge  of  chemistry  as  his  services  may  be  demanded 
may  certainly  at  this  time  be  fairly  regarded  as  in  the  prac- 
tice of  a profession.” 

Yet  in  the  face  of  this  decision,  and  in  spite  of  the  ex- 
pressions of  the  Supreme  Court  regarding  the  proper  ap- 
plication of  the  rules  of  statutory  interpretation  to  the 
Act  of  1885, 55  the  Circuit  Court  of  Appeals  of  the  Second 
Circuit  had  no  hesitation  in  holding  that  an  alien  shown 
to  be  a chartered  accountant,  seeking  admission  to  the 
United  States  for  the  purpose  of  rendering  services  as  such 
at  a fixed  salary  to  a corporation  domiciled  in  this  country 
came  within  the  prohibition  of  the  act.  This  person  was, 
on  a ruling  to  this  effect,  detained  for  deportation  by  the 
Secretary  of  the  Treasury.  He  appealed  to  the  courts  for 
the  issuance  of  a writ  of  habeas  corpus , which  was  refused, 
whereupon  he  appealed  to  the  Supreme  Court  of  the 
United  States.  While  the  case  was  on  the  day  calendar  his 
counsel  agreed  to  move  for  a dismissal  of  the  appeal  on 
receiving  an  assurance  from  the  Department  of  Justice 
that  the  petitioner  would  be  admitted.  The  order  of  ad- 
mission was  made  by  the  Secretary  of  Commerce  and 
Labor  and  the  appeal  dismissed.56 

The  act  of  coming  to  the  United  States  in  response  to 
promises  of  employment  through  advertisements  printed 

65Church  of  the  Holy  Trinity  v.  United  States,  143  U.  S.  457,  36  Law  Ed. 
227 ; as  to  the  interpretation  of  the  immigration  laws  generally,  see  Red- 
fern  v.  Halpert,  186  Fed.  150;  United  States  v.  Williams,  175  Fed.  274; 
United  States  v.  Wood,  168  Fed.  438;  United  States  v.  Naskashima.  160 
Fed.  842;  In  re  Ellis,  124  Fed.  637;  United  States  v.  Mar  Ying  Yuen,  123 
Fed.  159;  Tsoi  Sim  v.  United  States,  116  Fed.  920;  United  States  v.  Burke, 
99  Fed.  895. 

56ln  re  Ellis,  124  Fed.  637,  196  U.  S.  643;  Moore  Int.  Law  Dig.,  Yol.  4, 

p.  108. 


Power  and  Methods. 


73 


and  published  in  a foreign  country,  was  treated  in  section 
three  as  equivalent  to  coming  to  this  country  under  a con- 
tract to  perform  labor  here;  and  the  effect  of  the  section 
was  to  dispense  with  the  necessity  of  proving  that  there 
had  been  a contract  with  the  alien  previous  to  importation 
on  the  part  of  the  persons  for  whom  the  labor  was  to  be 
performed  other  than  the  promise  of  employment.  The 
solicitation  of  any  immigrant  to  migrate  to  the  United 
States  by  steamship  or  transportation  companies  was  for- 
bidden under  the  penalty  of  a fine,57  and  the  bringing  into 
or  landing  in  the  United  States  of  any  alien  not  lawfully 
entitled  to  enter,  or  aiding  in  the  same  by  vessel  or  other- 
wise was  made  a misdemeanor  and  punishable  with  fine  or 
imprisonment.58  The  power  of  the  Secretary  of  the  Treas- 
ury to  enter  into  contracts  with  state  commissions,  boards, 
or  officers,  was  withdrawn  by  this  act,59  which  created  the 
office  of  Superintendent  of  Immigration,60  now  the  Com- 
missioner General  of  Immigration  who,  it  has  been  held, 
under  the  Act  of  June  6,  1900, 61  in  connection  with  the 
Act  of  May  5,  1892, 62  acquired  jurisdiction  over  Chinese 
laborers  in  the  United  States  without  certificates  of  resi- 
dence.63 

Finality  of  Administrative  Decisions. 

The  decisions  made  by  inspection  officers  and  their  as- 
sistants touching  the  right  of  any  alien  to  land,  were,  when 
adverse  to  such  right,  made  final  in  the  absence  of  appeal 
taken  to  the  Superintendent  of  Immigration,  whose  action 
was  to  be  subject  to  review  by  the  Secretary  of  the  Treas- 
ury;64 but  the  immigrant  was  accorded  the  privilege  of  a 

57Section  4. 

58Section  6. 

5920  Op.  Atty.  Gen.  69,  1891. 

60Section  7. 

6i31  Stat.  at  L.  611. 

6227  Stat.  at  L.  25. 

63Fong  Mey  Yuk  v.  United  States,  113  Fed.  898. 

64Seetion  8. 


74  The  Exclusion  and  Expulsion  of  Aliens. 

special  inquiry  as  to  his  right  to  land  after  his  case  had 
been  first  passed  on  by  the  inspection  officer.65  These  pro- 
visions have  been  held  to  apply  to  proceedings  taken  before 
the  immigrants  were  allowed  to  land,  and  not  to  proceed- 
ings for  the  recapture  of  such  as  had  been  passed  and 
landed  ;66  but  there  is  little  doubt  that  this  view,  expressed 
at  a comparatively  early  date  in  the  history  of  immigra- 
tion legislation,  does  not  voice  the  attitude  of  the  courts 
to-day.67 

The  Return  of  Aliens  Unlawfully  Here. 

The  return  of  aliens  unlawfully  within  the  United  States 
might  be  ordered  within  one  year  after  landing,  as  well  as 
that  of  aliens  becoming  public  charges  within  that  period 
after  arrival  from  causes  existing  prior  to  such  landing.68 
Provision  for  return  within  this  period  had  already  been 
made  in  the  Act  of  October  19,  1888, 69  and  this  section  has 
been  held  to  create  no  new  authority  to  return,  but  simply 
to  provide  additional  means  of  meeting  the  expenses  of  ar- 
rest and  removal.70  In  interpreting  the  purpose  and  effect 
of  this  act  and  of  the  preceding  Act  of  1888  providing  for 
the  return  of  aliens  found  within  a year  after  entering  to 
be  unlawfully  in  the  country,  the  Supreme  Court  has 
said : 71  “Taking  all  its  enactments  together  it  is  clear 
that  Congress  did  not  intend  that  the  mere  admission  of 
an  alien  or  his  mere  entering  the  country  should  place  him 
at  all  times  thereafter  entirely  beyond  the  control  or  au- 
thority of  the  executive  officers  of  the  Government 

The  immigrant  must  be  taken  to  have  entered  subject  to 

65ln  re  Feinknopf,  47  Fed.  477;  In  re  Hirsch  Berjanski,  47  Fed.  445. 

66ln  re  Lifieri,  52  Fed.  293. 

67Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721;  Ekiu  v.  United 
States,  140  U.  S.  651,  35  Law  Ed.  1146;  United  States  v.  Yamasaka,  100 
Fed.  404. 

esSeetion  1. 

6921  Stat.  at  L.  565. 

70ln  re  Lifieri,  52  Fed.  293. 

7iYamataya  t.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 


Power  and  Methods. 


75 


the  condition  that  he  might  be  sent  out  of  the  country  by 
order  of  the  proper  executive  officer,  if,  within  a year,  he 
was  found  to  have  been  wrongfully  admitted  into  or  to 
have  illegally  entered  the  United  States.”  Again,  in  a 
later  case,72  the  Supreme  Court  in  referring  to  the  policy 
of  the  original  Act  of  October  19,  1888,  speaks  of  it — and 
also  referring  to  the  present  act  under  discussion — as  a 
policy  “which  obviously  was  to  give  a chance  for  fuller 
investigation  than  is  possible  at  the  moment  of  landing, 
when  any  inquiry  necessarily  must  be  of  a very  summary 
sort;”  and,  in  construing  section  21  of  the  Act  of  March 
8,  1903, 73  which  perpetuated  this  provision,  added,  “This 
policy  is  emphasized  and  re-enforced  by  changing  the 
period  of  probation  from  one  year  to  three,  while  in  other 
respects  paragraph  21  follows  almost  literally  the  words 
of  the  earlier  act.” 

Prohibition  Against  Unlawful  Landing  of  Aliens. 

Prior  to  the  passage  of  this  act  the  obligation  of  ship- 
masters not  to  land  or  bring  aliens  belonging  to  the  ex- 
cluded classes  into  the  country  consisted  in  the  positive 
prohibition  against  the  landing  of  such  persons  on  pain  of 
fine  or  imprisonment  or  both.74  This  prohibition  was  made 
by  section  6 of  the  act  under  discussion  to  apply  not  only 
to  shipmasters,  but  to  “all  persons,”  and  to  prohibit  the 
landing  of  all  aliens  not  entitled  to  enter  the  United 
States.  The  penalty  was  made  doubly  severe.75  By  sec- 
tion 8 it  was  provided  in  addition  that  officers  and  agents 
of  vessels  bringing  aliens  to  the  United  States  should 
“adopt  due  precautions  to  prevent  the  landing  of  any 
alien  immigrant  at  any  place  or  time  other  than  that  desig- 
nated by  the  inspection  officers;”  and  that  any  such  per- 
son “who  shall  either  knowingly  or  negligently  land  or 

72Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029. 

7332  Stat.  at  L.,  pt.  1,  p.  1213. 

7 ^ Act  of  February  26,  1885,  sec.  4;  23  Stat.  at  L.  332. 

75Section  6. 


76  The  Exclusion  and  Expulsion  of  Aliens. 

permit  to  land  any  alien  immigrant  at  any  time  or  place 
other  than  that  designated  by  the  inspection  officers  shall 
be  deemed  guilty  of  a misdemeanor”  and  be  punishable 
by  fine  or  imprisonment.  The  statute  did  not,  however, 
contemplate  a responsibility  on  the  part  of  the  master  or 
agent  so  extreme  as  to  make  him  an  absolute  insurer 
against  the  landing  of  aliens  without  his  fault;  and  to 
hold  him  liable  under  the  penal  clause  of  the  act  it  was 
necessary  to  show  that  the  escape  of  aliens  was  due  to  the 
master’s  wilful  lack  of  precaution  or  positive  negligence.76 
That  provisions  of  this  nature  being  penal  in  character 
should  be  strictly  construed  was  held  as  axiomatic.77 

Judicial  and  Administrative  Jurisdiction  Not  Concurrent. 

Section  13  provided  that  the  Circuit  and  District  Court 
of  the  United  States  were  thereby  invested  with  full  and 
concurrent  jurisdiction  of  all  cases  civil  and  criminal 
arising  under  the  provisions  of  the  act.  It  was  contended 
in  the  case  of  Ekiu  v.  The  United  States,78  that  by  this  pro- 
vision the  courts,  as  well  as  the  executive  officers  to  whom 
jurisdiction  over  cases  involving  the  exclusion  or  expul- 
sion of  aliens  had  hitherto  been  confided  had  jurisdiction 
over  such  cases ; but  the  court  held  that  this  section  “evi- 
dently refers  to  causes  of  judicial  cognizance  already  pro- 
vided for,  whether  civil  actions  in  the  nature  of  debt  for 
penalties  under  sections  3 and  4 or  indictments  for  misde- 
meanors under  sections  6,  8 and  10.  Its  intention  was  to 
vest  concurrent  jurisdiction  of  such  causes  in  the  circuit 
and  district  courts;  and  it  is  impossible  to  construe  it  as 
giving  the  courts  jurisdiction  to  determine  matters  which 
the  act  has  expressly  committed  to  the  final  determination 
of  executive  officers.” 

76Hackfeld  & Co.  v.  United  States,  197  U.  S.  442,  49  Law  Ed.  826. 

77United  States  v.  Gay,  80  Fed.  254. 

78142  U.  S.  651,  35  Law  Ed.  1146. 


Power  and  Methods. 


77 


(I.)  The  Act  of  March  3,  1893.79 
Immigrant  Lists . 

This  law  was  enacted  to  facilitate  the  enforcement  of 
the  immigration  and  contract  labor  laws.  It  provided  for 
the  furnishing  of  lists  of  alien  immigrants  by  the  masters 
of  incoming  vessels ; for  the  verification  of  such  lists  by  the 
master  before  the  consular  representative  of  the  United 
States  at  the  foreign  port  of  departure,  and  by  a competent 
surgeon  prior  to  the  departure  of  the  vessel,  and  penalized 
the  failure  to  deliver  such  lists  to  the  immigrant  inspector 
at  the  port  of  arrival.80 

Boards  of  Inquiry  and  Right  of  Administrative  Appeal. 

Section  5 of  the  act  provided  that  aliens  not  found  by  the 
immigrant  inspector  to  be  clearly  and  beyond  a doubt  en- 
titled to  land  should  be  detained  for  special  inquiry  by  a 
board  composed  of  not  less  than  four  officials  acting  as 
inspectors ; and  that  none  should  be  admitted  except  on  the 
favorable  decision  of  at  least  three  of  the  members  of  the 
board,  but  that  any  decision  to  admit  should  be  appealable 
by  any  dissenting  inspector  to  the  Superintendent  of  Im- 
migration, whose  decisions  should  be  subject  to  review  by 
the  Secretary  of  the  Treasury. 

Immigration  Laws  No  Abrogation  of  State  Quarantine 
Systems. 

The  contention  has  been  made  that  this  act  was  in  con- 
flict with  the  Act  of  Congress  of  1893  which  granted  addi- 
tional powers  to  the  Marine  Hospital  Service,  and  in  con- 
flict as  well  with  rules  and  regulations  issued  by  the  de- 
partment for  the  enforcement  of  the  immigration  laws. 

7927  Stat.  at  L.  651. 

80But  the  failure  to  include  in  such  list  the  name  of  a domiciled  alien  who 
nas  taken  passage  for  the  round  trip  in  a capacity  other  than  that  of  sea- 
man does  not  subject  the  master  to  a fine.  23  Op.  Atty.  Gen.  278,  1900. 


78  The  Exclusion  and  Expulsion  of  Aliens. 

But  the  Supreme  Court  said : 81  “The  immigration  acts  to 
which  the  proposition  relates  are  those  of  March  3,  1875, 
of  August  3,  1882,  of  June  21,  1884,  of  February  26,  1885, 
cf  February  23,  1887,  and  of  March  3,  1891,  and  the  regu- 
lations to  enforce  the  same.  Without  undertaking  to 
analyze  the  provisions  of  these  acts,  it  suffices  to  say  that 
after  scrutinizing  them  we  think  they  do  not  purport  to 
abrogate  the  quarantine  laws  of  the  several  states,  and 
that  the  safeguards  which  they  create  and  the  regulations 
which  they  impose  on  the  introduction  of  immigrants  was 
ancillary,  and  subject  to  such  quarantine  laws.  So  far 
as  the  Act  of  1893  is  concerned,  it  is  manifest  that  it  did 
not  contemplate  the  overthrow  of  the  existing  state  quar- 
antine systems  and  the  abrogation  of  the  powers  on  the 
subject  of  health  and  quarantine  exercised  by  the  states 
from  the  beginning,  because  the  enactment  of  state  laws  on 
these  subjects  would  in  particular  instances,  affect  inter- 
state and  foreign  commerce Nor  do  we  find  anything 

in  the  rules  and  regulations  adopted  by  the  Secretary  of 
the  Treasury  in  execution  of  the  power  conferred  upon  him 
by  the  act  in  question  giving  support  to  the  contention 
based  upon  them.” 

(J.)  The  Act  of  March  3,  1903.82 

Head  Tax. 

This  statute,  entitled  “An  act  to  regulate  the  immigra- 
tion of  aliens  into  the  United  States,”  provided  in  its  first 
section  for  the  levy  of  a head  tax  of  $2.00  for  each  pas- 
senger not  a citizen  of  the  United  States,  Dominion  of 
Canada,  Republic  of  Cuba,  or  the  Republic  of  Mexico, 
coming  by  water  or  land  into  the  United  States,  said  tax  to 
be  a lien  upon  the  vessel  bringing  such  aliens  to  the  United 
States  and  a debt  in  favor  of  the  Government  against  the 

siCompagnie  Francaise  de  Navigation  a Vapeur  v.  State  Board  of  Health, 
186  U.  S.  380,  46  Law  Ed.  1209. 


Power  and  Methods. 


79 


owner  of  the  vessel,  payment  thereof  to  be  enforced  by  any 
legal  or  equitable  remedy ; but  the  head  tax  was  not  to  be 
levied  on  aliens  in  transit  through  this  country,  nor  upon 
aliens  who,  having  once  been  admitted  thereto  after  pay- 
ment of  the  tax  should  later  go  in  transit  through  one  part 
of  the  United  States  to  another  through  foreign  contigu- 
ous territory. 

Aliens  Excluded. 

To  the  list  of  persons  excluded  under  earlier  acts  were 
added  epileptics  and  persons  who  have  been  insane  within 
five  years  previous  to  their  application  or  have  had  two 
or  more  attacks  of  insanity  at  any  time  previously;  pro- 
fessional beggars;  anarchists;  prostitutes,  for  the  first 
time  in  the  history  of  immigration  legislation,  and  persons 
who  procure  or  attempt  to  bring  in  prostitutes  or  women 
for  the  purpose  of  prostitution;  those  who  have  been 
within  one  year  from  the  date  of  the  application  for  admis- 
sion to  the  United  States  deported  as  being  under  offers 
to  perform  labor  or  service  of  some  kind;  and  any  person 
whose  ticket  or  passage  was  paid  for  with  the  money  of 
another  or  who  was  assisted  by  others  to  come  unless  it 
was  affirmatively  shown  that  such  person  did  not  belong 
to  one  of  the  foregoing  classes. 

The  power  of  Congress  to  exclude  anarchists  was  at- 
tacked on  constitutional  grounds  but  without  avail.83  It 
was  held  not  to  apply  to  aliens  who  entered  prior  to  its 
passage84  nor  to  bona  -fide  alien  seamen,85  nor  to  aliens 
domiciled  in  the  United  States.86 

Prostitutes,  and  Their  Importation. 

Theretofore  the  only  provisions  prohibiting  the  entrance 

88United  States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law.  Ed.  979. 

84In  re  Lea,  126  Fed.  234. 

ssTaylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 

86United  States  v.  Nakashima,  160  Fed.  843;  Rogers  v.  United  States, 
152  Fed.  346;  United  States  v.  Aultman,  143  Fed.  922;  but  see  Taylor  v. 
United  States,  152  Fed.  1. 


80  The  Exclusion  and  Expulsion  of  Aliens. 

of  immoral  women  was  contained  in  the  Act  of  1875, 87 
which  excluded  only  those  alien  women  who  had  been  im- 
ported for  purposes  of  prostitution,  and  did  not  prohibit 
the  entrance  of  prostitutes  coming  to  this  country  of  their 
own  accord.  The  importation  of  women  for  that  purpose 
was  designated  in  that  act  as  a felony  punishable  with 
heavy  fine  and  imprisonment.  The  Act  of  1903, 88  similarly 
classified  and  punished  the  attempt  to  import  as  well  as 
actual  importation,  and  re-enacted  the  prohibition  of  the 
law  of  1875  against  holding  or  attempting  to  hold  women 
for  such  purposes  in  pursuance  of  such  illegal  importation. 
In  so  far  as  the  Act  of  1903  placed  no  limitation  of  the 
period  after  arrival  within  which  a person  holding  an  alien 
woman  for  prostitution  in  pursuance  of  illegal  importa- 
tion might  be  criminally  prosecuted,  section  3 of  the  Act 
of  February  20,  1907,  which  limited  the  period  within 
which  a prosecution  might  be  initiated  to  three  years,  re- 
pealed the  corresponding  section  of  the  Act  of  1903,  to 
that  extent  ;89  but  in  so  far  as  it  excluded  alien  prostitutes 
it  was  kept  in  force  by  the  later  act.90 

Contract  Labor. 

While  aliens  coming  to  the  United  States  for  the  pur- 
pose of  performing  labor  here  under  contract  were  not 
excluded  by  the  terms  of  this  act,91  it  was  none  the  less 
made  unlawful  for  any  person  to  prepay  the  transporta- 
tion or  to  assist  in  the  importation  or  migration  of  such 
alien  to  perform  labor,  skilled  or  unskilled,  in  the  United 
States,  pursuant  to  offers  of  employment  made  previous 
to  the  importation,92  and  such  offense  was  penalized  as  in 

8718  Stat.  at  L.,  pt.  3,  p.  477. 

8832  Stat.,  pt.  1,  p.  1213. 

89United  States  ex  rel.  Chanin  v.  Williams,  177  Fed.  789. 

90Ex  parte  Durand,  160  Fed.  558. 

siBotis  v.  Davies,  173  Fed.  996;  Davies  v.  Manolis,  179  Fed.  818;  26  Op. 
Atty.  Gen.,  p.  199,  1907 ; but  see  In  re  Ellis,  124  Fed.  637. 

^Section  4. 


Power  and  Methods. 


81 


the  preceding  act,93  and  transportation  companies  were 
forbidden  to  encourage  the  migration  of  aliens  irrespective 
of  the  purpose  of  such  migration  except  by  ordinary  com- 
mercial letters,  circulars,  etc.94 

Unlawful  Landing  of  Aliens. 

Section  6 of  the  Act  of  March  3,  1891,  had  prohibited 
and  penalized  bringing  or  landing  or  aiding  in  bringing 
or  landing  in  the  United  States  any  alien  not  lawfully 
entitled  to  enter;  whereas  section  8 of  the  Act  of  1903, 
not  only  penalized  the  bringing  or  landing,  but  the  at- 
tempt to  commit  these  acts  as  well,  in  case  such  aliens 
had  not  been  duly  admitted  by  an  immigrant  inspector,  or 
were  not  lawfully  entitled  to  enter  the  United  States. 

Bringing  Diseased  Aliens  to  the  United  States. 

The  additional  prohibition  against  bringing  aliens  af- 
flicted with  a loathsome  or  dangerous  contagious  disease 
first  appears  in  the  Act  of  1903,  section  9 of  which  imposed 
a fine  of  one  hundred  dollars  upon  any  transportation 
company  bringing  such  aliens  to  this  country  if  it  should 
appear  that  the  alien  so  brought  was  afflicted  with  the 
disease  in  question  at  the  time  of  foreign  embarkation  and 
that  the  existence  thereof  might  have  been  detected  by  a 
competent  medical  examination  at  that  time. 

Obligation  of  the  Transporter  to  Prevent  Unlawful  Land- 
ing. 

Section  8 of  the  Act  of  1891  had  imposed  on  the  officers 
and  agents  of  vessels  bringing  immigrants  to  the  United 
States,  the  duty  of  adopting  “due  precautions  to  prevent 
the  landing  of  any  alien  immigrant  at  any  place  or  time 
other  than  that  designated  by  the  inspection  officers,”  and 
penalized  as  a misdemeanor  knowingly  or  negligently  land- 
ing or  permitting  to  land  any  such  alien  immigrant  except 
at  such  time  and  place.  Section  18  of  the  Act  of  1903  pro- 
jections 5 and  6. 

94Section  7. 


82  The  Exclusion  and  Expulsion  of  Aliens. 

vided  that  such  precautions  should  be  adopted  with  regard 
to  “any  alien”  and  penalized  the  “landing  or  permitting  to 
land”  of  any  alien  except  at  the  time  and  place  designated. 
The  effect  of  the  change  of  the  term  “alien  immigrants”  as 
used  in  the  Act  of  1891  to  “aliens”  in  the  Act  of  1903  is 
elsewhere  discussed.95  The  omission  in  the  Act  of  1903  of 
the  words  “knowingly  and  negligently,”  used  in  the  Act  of 
1891  immediately  preceding  the  words  “land  or  permit  to 
land,”  was  doubtless  due  to  a desire  on  the  part  of  Con- 
gress to  impose  upon  ship  owners  and  other  persons  the 
obligation  to  observe  the  strictest  caution  to  prevent  the 
escape  of  aliens  under  their  charge.  The  section  was  held 
not  to  apply  to  sailors  allowed  to  land  in  the  ordinary 
course  of  shore  leave,  who  were  carried  to  an  American 
port  with  the  bona,  fide  intent  to  take  them  out  again  when 
the  ship  went  on,  where  there  was  no  ground  for  supposing 
that  they  were  making  the  voyage  as  a pretext  to  get  into 
the  United  States.96 

Obligation  of  Transporter  to  Detain  Aliens  for  Deporta- 
tion. 

Section  10  of  the  Act  of  1891  is  virtually  re-enacted  by 
section  19  of  the  Act  of  1903,  providing  that  refusal  by 
ship  owners  to  receive  excluded  aliens  back  on  board  and 
neglect  to  detain  them  thereon,  or  refusal  or  neglect  to  re- 
turn them  to  the  foreign  port  whence  they  came,  shall  con- 
stitute a misdemeanor.  In  the  corresponding  section  of 
the  Act  of  February  20, 1907,  the  word  “fail”  is  substituted 
for  “neglect.”  The  reason  for  the  change  may  be  found  in 
the  language  of  the  Supreme  Court  in  the  case  of  Hackfelt 
v United  States,97  where  the  court  had  occasion  to  construe 
section  10  of  the  Act  of  1891.  It  was  there  held  that  the  lan- 
guage of  that  section  “does  not  make  the  ship  owner  an  in- 
surer, at  all  hazards,  of  the  safe  return  of  the  immigrant,  but 

Post  p.  434  et  seq. 

96Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 

»7197  U.  S.  442,  49  Law  Ed.  826. 


Power  and  Methods. 


83 


does  require  every  precaution  to  detain  him  and  prevent  his 
escape.”  “We  think,”  says  the  court,  “this  statute  was 
intended  to  secure  not  the  delivery  of  the  immigrant  at  all 
hazards,  but  to  require  good  faith  and  full  diligence  to 

carry  him  back  to  the  port  from  whence  he  came It  is 

urged  by  the  Government  that  in  view  of  the  re-enactment 
of  section  10  as  section  19  of  the  Act  of  1903  it  is  to  receive 
a construction  in  harmony  with  the  judicial  interpretation 
given  to  the  act  before  the  revision.  While  recognizing 
the  rule  that  doubtful  terms  which  have  acquired  through 
judicial  interpretation  a well  understood  legislative  mean- 
ing are  presumed  to  be  used  by  the  legislature  in  the  sense 
determined  by  authoritative  decisions — The  Abbotsford 
(The  Abbotsford  v.  Johnson),  98  U.  S.  440,  25  Law  Ed. 
168 — we  do  not  think  the  rule  applies  to  this  case.  So  far 
as  we  know,  there  has  been  but  one  decision,  in  the  Warren 
case,  7 C.  C.  A.  368,  5 U.  S.  App.  656,  58  Fed.  559,  which 
was  doubted  in  the  Spruth  case,  71  Fed.  678.”  The  court 
then  cites  an  opinion  of  the  Attorney  General98  holding 
that  the  master  was  not  made  liable  at  all  hazards  by  the 
terms  of  section  10,  and  adds  that  “in  this  state  of  judicial 
and  official  opinion  we  do  not  think  this  act  can  be  said 
to  have  received  such  judicial  interpretation  as  should 
control  its  legislative  meaning.” 

Probationary  Period . 

Sections  20  and  21  of  the  Act  of  1903  increased  the 
period  within  which  persons  found  to  be  public  charges 
due  to  causes  existing  prior  to  the  time  of  landing  might  be 
expelled  to  two  years,  and  the  period  of  expulsion  of  aliens 
found  by  the  Secretary  of  the  Treasury  to  be  unlawful  in 
the  United  States  to  three. 

Boards  of  Special  Inquiry — Effect  of  Their  Decisions. 

This  act  continues  the  boards  of  special  inquiry  estab- 
lished by  the  Act  of  1893,  but  reduced  the  membership 

9823  Op.  Atty.  Gen.  271,  October,  1900. 


84  The  Exclusion  and  Expulsion  of  Aliens. 

thereof  to  three  inspectors ; and  provided  that  the  decisions 
of  such  boards  were  to  be  final  as  to  the  right  of  aliens 
to  land  in  all  cases  where  the  applicants  were  found  to  be 
suffering  from  mental  or  physical  disabilities  of  a particu- 
larly severe  or  permanent  nature and  that  in  other  cases 
the  decisions  of  the  boards  were  to  be  final  except  that  an 
appeal  therefrom  was  allowed  to  the  Secretary  of  Com- 
merce and  Labor  through  the  Commissioner  General  of  Im- 
migration.100 In  passing  upon  the  finality  of  the  board’s 
decision  in  connection  with  the  right  of  the  Secretary  of 
Commerce  and  Labor  to  return  aliens  found  by  him  to  be 
unlawfully  within  the  United  States  within  three  years 
after  they  had  been  admitted  by  the  board,  the  Supreme 
Court  said,  “The  board  is  an  instrument  of  the  executive 
power,  not  a court.  It  is  made  up  of the  immi- 

grant officials  in  the  service,  subordinates  of  the  Commis- 
sioner of  Immigration,  whose  duties  are  declared  to  be  ad- 
ministrative by  section  23.  Decisions  of  a similar  type 
have  long  been  recognized  as  decisions  of  the  executive  de- 
partment, and  cannot  constitute  res  judicata  in  a technical 

sense There  is  a plain  and  sufficient  meaning  for  the 

words,  making  their  decision  final,  and  that  is,  that  it  shall 
be  final  where  it  is  most  likely  to  be  questioned, — in  the 
courts.” 

Retroactive  Effect  of  This  Act. 

Section  28,  providing  that  nothing  contained  in  the  act 
should  affect  any  prosecution  or  other  proceeding  begun 
under  any  existing  act  was  held  not  to  be  limited  in  its 
application  to  prosecutions  or  proceedings  which  had  be- 
gun before  the  passage  of  the  act,  but  to  apply  likewise  to 
those  thereafter  begun  under  the  old  law  based  on  acts 
committed  before  its  repeal  or  amendment.1 

Further  provisions  of  this  act  are  considered  in  connec- 

»»Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029. 

looSection  25. 

iLang  v.  United  States,  133  Fed.  201. 


Power  and  Methods. 


85 


tion  with  the  discussion  of  the  existing  immigration  law, 
the  Act  of  February  20,  1907,  as  amended  by  the  Act  of 
March  26,  1910.2 

2.  The  Chinese  Exclusion  Acts. 

(A.)  The  Acts  of  May  6,  1882,  and  July  5,  1884. 

The  first  of  the  Chinese  exclusion  acts,  the  purpose  of 
which  has  been  held  to  be  to  exclude  Chinese  generally  as 
contrasted  with  that  of  the  immigration  acts  to  admit  them 
generally,3  was  passed  on  May  6,  1882.  The  title  was  “An 
act  to  execute  certain  treaty  stipulations  relating  to 
Chinese.”  The  stipulations  referred  to  were  those  con- 
tained in  Articles  I,  II  and  III  of  the  treaty  with  China  of 
November  17,  1880.4  providing  for  the  suspension  of  the 
immigration  of  Chinese  laborers  into  the  United  States. 
Consequently  the  Supreme  Court  of  the  United  States  held 
that  “since  the  purpose  avowed  in  the  act  was  to  faithfully 
execute  the  treaty  any  interpretation  of  its  provisions 
would  be  rejected  which  imputes  to  Congress  an  intention 
to  disregard  the  plighted  faith  of  the  Government,  and  con- 
sequently the  court  ought,  if  possible,  to  adopt  that  con- 
struction which  recognized  and  saved  rights  secured  by  the 
treaty.”5 

Coming  of  Chinese  Laborers  Suspended. 

The  act  provided  that  the  coming  of  Chinese  laborers  to 
the  United  States  be  suspended  between  the  period  running 
from  the  expiration  of  ninety  days  after  the  passage  of  the 
act  (Aug.  5,  1882),  and  the  expiration  of  ten  years  next 
succeeding  the  date  of  the  passage  thereof  (May  6,  1892). 
It  provided  for  the  issuance  of  certificates  for  the  purpose 
of  the  identification  of  laborers,  these  certificates  to  be 

*Post  p,  149. 

3United  States  v.  Crouch,  185  Fed.  907. 

*Ante  p.  26. 

sChew  Heong  v.  United  States,  112  U.  S.  536,  28  Law  Ed.  770. 


86 


The  Exclusion  and  Expulsion  of  Aliens. 


given  by  the  collector  of  customs  to  such  as  were  in  this 
country  on  November  17,  1880,  or  who  should  come  here 
prior  to  August  5th,  1882.6  It  further  provided  for  the 
identification  by  the  Chinese  government  of  persons  other 
than  laborers.7 

Its  primary  object  was  to  put  a temporary  stop 
to  the  immigration  of  Chinese  laborers,  and  at  the 
same  time  to  provide  that  such  as  were  in  the 
United  States  prior  to  November  17,  1880,  might 
be  allowed  to  leave  and  return  at  their  pleasure.8 
‘•The  enforcement  of  the  act  with  respect  to  laborers 
who  were  in  the  United  States  on  November  17,  1880,  was 
attended  with  great  embarrassment  from  the  suspicious 
nature  in  many  instances  of  the  testimony  offered  to  estab- 
lish the  residence  of  the  parties,  arising  from  the  loose 
notions  entertained  by  the  witnesses  of  the  obligation  of 
an  oath.  This  fact  led  to  the  desire  for  further  legislation 
restricting  the  evidence  receivable,  and  the  amendatory 
Act  of  July  5,  1884,  was  accordingly  passed To  ob- 

viate the  difficulties  attending  its  enforcement  the  amenda- 
tory act  declared  that  the  certificate  that  the  laborer  must 
obtain  ‘shall  be  the  only  evidence  permissible  to  establish 
his  right  to  re-entry’  into  the  United  States.”  9 

Certificates  of  Identification  and  Return. 

As  above  stated,  certificates  were  required  under  the 
Act  of  1882,  as  amended,  from  two  distinct  classes  of 
Chinese,  those  who  were  laborers,  and  Chinese  other  than 
laborers.  They  were  drawn  up  and  framed  to  meet  the 
distinct  requirements  of  either  class,  and  are  in  no  way 
to  be  confused  with  one  another.  The  certificate  required 
from  the  Chinese  government  consists  of  no  more  or  less 
than  an  averment  by  that  government  of  the  fact  that  the 
person  to  whom  it  was  issued  did  not  belong  to  the  labor- 

6See  Appendix. 

7See  United  States  v.  Chu  Chee,  93  Fed.  797. 

©See  In  re  Ah  Sing,  13  Fed.  286. 

©Chae  Chan  Ping  v.  United  States,  130  U.  S.  531,  32  Law  Ed.  1068. 


Power  and  Methods. 


87 


in g class ; whereas  the  return  certificate  issued  by  the  col- 
lector of  customs  to  the  outgoing  laborer  was  issued  in  the 
first  instance  to  distinguish  him  as  such,  and  for  the  pur- 
pose of  properly  identifying  him  as  one  who  had  been  in 
the  United  States  on  the  17th  day  of  November,  1880,  or 
wTho  had  come  into  the  United  States  before  the  expiration 
of  ninety  days  after  the  passage  of  the  act.10 

But  since  the  purpose  of  the  act  was  only  to  restrict  the 
coming  of  Chinese  laborers,  skilled  or  unskilled,  and  was 
not  to  interfere  with  the  commercial  relations  between 
China  and  this  country,11  it  seems  that  the  provisions  mak- 
ing the  production  of  the  certificate  by  persons  alleging 
themselves  to  be  merchants  must  not  be  considered  as  an 
indication  that  Congress  did  not  look  with  favor  on  the 
coming  of  Chinese  of  the  exempt  classes.  In  the  case  of 
Lau  Ow  Bew  v.  The  United  States,12  Mr.  Justice  Fuller 
quoted  with  approval  the  following  language  used  by  Mr. 
J ustice  Field  in  an  earlier  case : 13  “The  certificate  men- 
tioned in  this  section  (section  6)  is  evidently  designed 
to  facilitate  proof  by  Chinese  other  than  laborers  coming 
from  China  and  desiring  to  enter  the  United  States  that 
they  are  not  within  the  laboring  class.  It  is  not  required 
as  a means  of  restricting  their  coming.  To  hold  that  such 
was  its  object  would  be  to  impute  to  Congress  a purpose 
to  disregard  the  stipulation  of  the  second  article  of  the  new 
treaty,  that  they  should  be  ‘allowed  to  go  and  come  of 
their  own  free  will  and  accord.’  ” 14 
As  before  observed,  this  measure,  which  went  no  further 
than  to  require  that  the  certificate  of  both  classes  be  ob- 
tained and  presented,  was  not  effective,  and  to  make  it  so 
the  amendatory  Act  of  1884,  in  its  sixth  section  contains 

i°Section  4,  Act  of  1882.  Needless  to  state  no  certificate  is  required  by 
Chinese  persons  of  American  birth  seeking  admission  into  the  United  States. 
Re  Look  Tin  Sing,  21  Fed.  905. 
uCase  of  the  Chinese  Merchant,  13  Fed.  605. 

12144  U.  S.  47,  36  Law  Ed.  340. 
i3Re  Yow  Lam  Chow,  13  Fed.  605. 
i4And  see  to  the  same  effect  62  Fed.  914. 


88 


The  Exclusion  and  Expulsion  of  Aliens. 


the  provision  that  the  certificate  “shall  be  the  sole  evidence 
permissible  on  the  part  of  the  person  so  producing  the  same 
to  establish  a right  of  entry  into  the  United  States.” 

In  spite  of  this  additional  provision,  however,  and  the 
various  other  amendments  involving  changes  of  more  or 
less  importance  the  desired  result  was  not  reached.  For 
the  Supreme  Court  held  that  the  act  would  be  inconsistent 
with  the  treaty  of  November  17,  1880,  if  construed  to  re- 
quire a certificate  from  Chinese  laborers  who  were  in  the 
United  States  on  that  date  and  who  had  departed  before 
May  6,  1882,  and  remained  away  until  after  July  5,  1884.15 
The  same  result  was  reached  in  the  case  of  the  United 
States  v.  Jung  Ah  Lung,16  where  the  facts  were  analogous. 
There  the  Supreme  Court,  in  addition  to  saying  that  the 
provisions  of  the  Act  of  1884,  as  far  as  they  related  to  the 
contents  of  the  certificate  to  be  presented  to  the  Collector 
of  Customs  by  the  returning  Chinese  laborer  arriving  by 
vessel,  are  not  retrospective,  points  out  that  section  4 of 
the  Act  of  1882  did  not  provide  that  the  certificate  was 
the  only  evidence  permissible  to  establish  the  right  of  re- 
turn;17 consequently  that  other  evidence  of  a laborer’s 
right  to  return  was  admissible,  thereby  sustaining  an 
earlier  decision,18  particularly  when  as,  in  the  Jung^Ah 
Lung  case,  there  was  absolute  proof  to  show  that  the  cer- 
tificate had  been  issued  under  the  Act  of  1882  to  the  re- 
turning laborer  and  had  been  lost  in  good  faith.10 

The  effect  of  these  decisions  was  “that  the  return  certifi- 
cate for  Chinese  laborers  was  the  only  evidence  permissible 
on  the  part  of  the  person  producing  it,  but  for  those  who 
could  not  produce  such  evidence  by  reason  of  departure 
from  the  country  before  the  Act  of  1882  went  into  effect” 

i^Chew  Heong  v.  United  States,  supra. 

16124  U.  S.  629,  31  Law  Ed.  591. 

nSee  also  18  Fed.  506. 

i»In  re  Ho  King,  14  Fed.  724. 

i»Note  In  re  Tung  Yeong,  19  Fed.  184;  In  re  Leong  Yick  Dew,  19  Fed. 
490;  In  re  Chin  Ah  On,  18  Fed.  506;  and  note  Fed.  Stat.  Annot.,  Vol.  1, 
p.  774. 


Power  and  Methods. 


89 


(or  who  could  not  produce  the  certificate  having  left  be- 
fore the  Act  of  1884  went  into  effect)  “other  testimony  was 

admissible The  failure  of  the  Act  of  1884  to  cure  the 

defects  of  the  Act  of  1882  resulted  in  both  the  legislative 
and  executive  departments  taking  up  the  subject  with  the 
view  of  providing  an  effective  measure  of  exclusion  against 
the  continual  influx  of  Chinese  immigrants.  The  new 
treaty  was  negotiated  by  the  State  Department  and  Con- 
gress immediately  passed  the  Act  of  September  13, 1888,  to 
carry  the  treaty  into  effect.  The  treaty  was,  however, 
finally  rejected  by  the  Chinese  Government,  and  as  a conse- 
quence that  portion  of  the  Act  dependent  upon  the  ratifica- 
tion of  the  treaty  failed  to  become  a law.20 

(B.)  The  Act  of  September  13,  1888. 

This  act  provided  that  from  and  after  the  date  of  the 
exchange  of  ratifications  of  the  pending  treaty  between 
the  United  States  of  America  and  the  Emperor  of  China, 
signed  on  March  12th,  1888,  it  should  be  unlawful  for  any 
Chinese  person,  whether  a subject  of  China,  or  any  other 
power,  to  enter  the  United  States  except  as  provided  in 
the  act.21  The  act  was  to  apply  to  “all  persons  of  the 
Chinese  race,  whether  subjects  of  China  or  other  foreign 
power  excepting  Chinese  diplomatic  or  consular  officers 
and  their  attendants;  and  the  words  “Chinese  laborers” 
whenever  used  in  this  act,  were  to  be  construed  as  both 
skilled  and  unskilled  laborers,  and  Chinese  employed  in 
mining.22  The  Chinese  laborer  was  not  to  be  permitted 
to  return  to  the  United  States  unless  he  had  a lawful  wife, 
child  or  parent  in  the  United  States,  or  property  therein  of 
the  value  of  one  thousand  dollars,  or  debts  of  like  amount 
due  him  and  pending  settlement.23  It  was  further  provided 

20United  States  v.  Chu  Chee,  93  Fed.  797. 

^Section  1. 

22Section  3. 

23Sections  5 and  6.  i 


90 


The  Exclusion  and  Expulsion  of  Aliens. 


that  a Chinese  laborer,  desirous  of  leaving  the  United 
States  with  the  intention  of  returning  should  be  granted  a 
certificate  of  return  by  the  collector  at  the  port  of  de- 
parture, as  furnishing  satisfactory  proof  of  his  identity, 
with  the  right  to  return  limited  to  one  year  extendible 
on  proof  of  existence  of  causes  beyond  the  control  of  the 
person  claiming  the  right  which  prevented  his  return 
within  the  time  specified;  and  that  no  Chinese  laborer 
would  be  permitted  to  re-enter  the  United  States  without 
presenting  the  return  certificate,  and  that  such  return 
could  be  lawfully  effected  only  at  the  port  of  departure. 
The  provision  involving  the  right  of  Chinese  laborers  to  re- 
turn was  embodied  in  substance  in  Article  II  of  the  treaty 
with  China  of  December  8,  1894.  It  has  been  held  that  in 
order  to  retain  the  right  to  return  under  the  certificate, 
where  that  right  depended  on  the  possession  by  the  appli- 
cant of  property  or  credit  to  the  amount  of  a thousand  dol- 
lars proof  must  be  made  of  the  existence  of  such  property 
or  credit  in  the  United  States  at  the  time  of  the  laborer’s 
return.24 

Chinese  persons  other  than  laborers  were  prohibited 
from  entering  the  United  States  except  at  designated  ports 
excepting  Chinese  diplomatic  or  consular  officers  or  their 
attendants.25 

Landing  of  Chinese  Persons  Prohibited. 

The  landing  or  permitting  to  land  of  Chinese  persons 
in  contravention  of  the  provisions  of  the  act,  as  well  as 
the  attempt  to  do  so,  was  made  a misdemeanor  and  penal- 
ized with  a fine  or  imprisonment  in  connection  therewith 
in  the  discretion  of  the  court;26  but  this  provision  was 
made  inapplicable  to  the  case  of  shipmasters  whose  vessels 
should  come  within  the  jurisdiction  of  the  United  States 
in  distress  or  under  stress  of  weather,  or  touching  at  any 

24 In  re  Ong  Lung,  125  Fed.  814. 

25Section  7. 

26gection  9. 


Power  and  Methods. 


91 


port  of  the  United  States  on  a voyage  to  any  foreign  port 
or  place,  and  even  then  no  Chinese  persons  should  be  per- 
mitted to  land  except  in  case  of  necessity,  and  should  de- 
part with  the  vessel.27 

The  Falsification  of  Certificates. 

The  false  substitution  or  alteration  of  any  name  on  any 
certificate  required  by  the  act  was  made  a misdemeanor 
punishable  by  fine  and  imprisonment.28 

Removal  of  Chinese  Unlawfully  Here. 

Section  13  provided  that  “any  Chinese  persons  or  per- 
sons of  Chinese  descent  found  unlawfully  in  the  United 
States  or  its  territory  may  be  arrested  upon  a warrant  is- 
sued upon  a complaint  under  oath  filed  by  any  party  on  be- 
half of  the  United  States  or  any  justice,  judge  or  commis- 
sioner of  any  United  States  court,  returnable  before  any 
justice,  judge  or  commissioner  of  any  United  States  court, 
and,  when  convicted  upon  a hearing  and  found  and  ad- 
judged to  be  one  not  lawfully  entitled  to  be  or  remain  in 
the  United  States,  such  person  shall  be  removed  from  the 
United  States  to  the  country  whence  he  came ” 

Section  15  repealed  the  Acts  of  1882  and  1884,  such 
repeal  to  take  effect  upon  the  ratification  of  the  pending 
treaty,  as  provided  in  section  1 of  the  act. 

(C.)  Act  of  October  1,  1888.29 

Upon  the  rejection  of  the  proposed  treaty  by  the  Chinese 
government  “Congress  very  promptly  passed  an  act  to  sup- 
plement the  Act  of  1882.  It  was  approved  October  1,  1888 
(25  Stat.  504,  c.  1064),  and  provided  that  it  should  be  un- 
lawful for  any  Chinese  laborer  who  had  at  any  time  before 
been  or  who  was  then  or  might  thereafter  be  a resident  of 

27Section.  10. 

zsSection  11. 

2925  Stat.  at  L.  504. 


92  The  Exclusion  and  Expulsion  of  Aliens. 

the  United  States  and  who  had  departed  or  should  there- 
after depart  therefrom,  and  had  not  returned  before  the 
passage  of  the  act,  to  return  to  or  remain  in  the  United 
States,  and  that  no  certificate  of  identity  provided  for  in 
the  fourth  or  fifth  sections  of  the  Act  of  1882  should 
thereafter  be  issued,  that  every  certificate  theretofore  is- 
sued in  pursuance  of  said  sections  was  declared  void  and 
of  no  effect,  and  that  Chinese  claiming  admission  by  virtue 
thereof  should  not  be  permitted  to  enter  the  United  States. 
This  act  closed  the  door  effectually  against  Chinese  la- 
borers coming  into  the  United  States  upon  any  claim  of 
prior  residence,  whether  supported  by  return  certificates 
or  proof  of  residence  in  the  United  States  between  Novem- 
ber 17 th,  1880,  and  August  5th,  1882.”  30 

The  Act  Held  Constitutional. 

The  constitutionality  of  the  Act  of  October  1,  1888,  was 
attacked  vigorously,  but  to  no  avail.  “The  validity  of  this 
act,”  says  the  Supreme  Court  in  the  case  of  Chae  Chan 

Ping31 “is  assailed  as  being  in  effect  an  expulsion 

from  the  country  of  Chinese  laborers  in  violation  of  exist- 
ing treaties  between  the  United  States  and  the  Govern- 
ment of  China,  and  of  the  rights  vested  in  them  under  the 

laws  of  Congress It  must  be  conceded  that  the  Act 

of  1888  is  in  contravention  of  express  stipulations  of  the 
treaty  of  1868  and  of  the  supplemental  treaty  of  1880,  but 
it  is  not  on  that  account  invalid  or  to  be  restricted  in  its 
enforcement.  The  treaties  were  of  no  greater  legal  obliga- 
tion than  the  acts  of  Congress.” And  the  Supreme 

Court  again  held  in  a later  case32  that  “the  result  of  the 
legislation  respecting  the  Chinese  would  seem  to  be  this: 
That  no  laborers  of  that  race  shall  hereafter  be  permitted 
to  enter  the  United  States,  or  even  to  return  after  having 

3°United  States  v.  Chu  Chee,  93  Fed.  797. 

31130  U.  S.  581,  32  Law  Ed.  1068. 

si  Wan  Shing  v.  United  States,  140  U.  S.  424,  35  Law  Ed.  503.  The 
“ legislation M referred  to  in  the  quotation  includes  the  Act  of  October  1, 
1888. 


Power  and  Methods. 


93 


departed  from  the  country,  though  they  may  have  previ- 
ously resided  therein,  and  have  left  with  a view  of  return- 
ing  ” 

The  effect  of  these  decisions  was  to  determine  that  the 
privilege  of  Chinese  laborers  to  come  to  and  remain  in  the 
United  States  was  a subject  within  legislative  control,  to 
be  regularly  suspended,  or  entirely  abrogated,  as  Congress 
should  declare,  and  that  the  law  of  the  Chew  Heong  case33 
was  no  longer  authority  in  construing  the  exclusion  hcts.34 

Up  to  the  passage  of  the  Act  of  October  1,  1888,  all  the 
parts  of  the  Act  of  September  13, 1888,  which  existed  inde- 
pendently of  the  ratification  of  the  treaty  with  China  of 
March  12, 1888,  remained  in  force.85  Sections  1 and  2 have 
been  held  never  to  have  been  operative30  as  have  sections 
2 to  4.37  Sections  5 to  14  have  been  held  to  be  binding  and 
in  full  force,38  although  the  Supreme  Court  has  held  that 
it  is  doubtful  if  section  8 ever  went  into  effect,39  and  that 
section  12  was  not  to  be  regarded  as  binding  on  the 
courts.40  Section  13  has  been  uniformly  held  to  express 
the  existing  law.41  The  Act  of  October  1st,  however,  re- 
voked all  privileges  conferred  on  Chinese  laborers  by  sec- 
tions 5,  6 and  7 of  the  Act  of  September  13,  1888.42 

(D.)  The  Act  of  May  5,  1892.43 

Generally  speaking,  the  Acts  of  1888  were  limited  in 
their  operation  to  Chinese  persons  unlawfully  coming  into 

33Chew  Heong  v.  United  States,  112  U.  S.  536,  28  Law  Ed.  770. 

34United  States  v.  Chu  Chee,  supra. 

35United  States  v.  Lee  Hoy,  48  Fed.  825;  United  States  v.  Chong  Sam, 
47  Fed.  878;  United  States  v.  Jim,  47  Fed.  431. 

36 Ex  parte  Ng  Quong  Ming,  135  Fed.  378. 

37United  States  v.  Long  Hop,  55  Fed.  58. 

ssHong  Wing  v.  United  States,  142  Fed.  128. 

3»Fok  Young  Yo  v.  United  States,  185  U.  S.  296,  46  Law  Ed.  917. 

40Li  Sing  v.  United  States,  180  U.  S.  486,  45  Law  Ed.  634. 

41Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121; 
United  States  v.  Jim,  47  Fed.  431. 

42 Ex  parte  Ng  Quong  Ming,  supra. 

*327  Stat.  at  L.  25. 


94 


The  Exclusion  and  Expulsion  of  Aliens. 


the  United  States.44  The  Act  of  May  5,  1892,  however,  as 
amended  by  the  Act  of  November  3,  1893, 45  was  primarily 
directed  at  Chinese  persons  unlawfully  in  the  United 
States.  It  extended  by  ten  years  the  time  within  which 
Chinese  laborers  should  be  barred  from  admission  to  this 
country,  and  provided  for  the  deportation  of  any  person 
of  Chinese  nationality  not  lawfully  entitled  to  remain  in 
the  United  States.46  Laying  aside  section  5 it  deals  with 
two  classes  of  Chinese  persons,  first  those  not  entitled  to  be 
or  remain  in  the  United  States,  and,  second,  those  entitled 
to  remain  therein.  “These  words  of  description  neither 
confirm  nor  take  away  any  right,  but  simply  designate  the 
Chinese  persons  who  were  authorized  or  permitted  to  re- 
main in  the  United  States  under  the  laws  and  treaties  ex- 
isting at  the  time  of  the  passage  of  this  act.”47 

Certificates  of  Registration,  or  Residence. 

Sections  1,  2,  3 and  6,  construed  together,  give  the 
United  States  Commissioner  jurisdiction  for  deportation 
purposes  over  Chinese  laborers  without  the  certificates  of 
residence  required  by  the  act.  The  obligation  imposed  by 
section  3 on  Chinese  persons  to  prove  affirmatively  their 
right  to  remain  in  the  United  States  has  been  held  con- 
sistent with  the  principle  that  every  legislature  has  the 
right  to  prescribe  the  evidence  which  is  to  be  received  as 
well  as  the  effect  thereof  in  the  courts,48  and  to  be  included 
in  the  power  to  prescribe  the  conditions  under  which  aliens 
may  enter  or  remain  in  the  United  States.49  Moreover,  this 
section  has  been  held  to  give  rise  to  the  presumption  of 
law  that  Chinese  persons  and  persons  of  Chinese  descent 

44 In  re  Yew  Bing  Hi,  128  Fed.  319. 

45 Post  p.  96. 

46United  States  v.  Yong  Yew,  83  Fed.  832. 

47Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

48Li  Sing  v.  United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Fong  Yue 
Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905;  Low  Foon  Yin  v. 
United  States,  145  Fed.  741;  In  re  Sing  Lee,  54  Fed.  334. 

49United  States  v.  Williams,  83  Fed.  997. 


Power  and  Methods. 


95 


who  have  failed  to  carry  out  its  requirements  are  not  enti- 
tled to  remain  in  the  country.50  But  section  4,  which  pro- 
vided for  imprisonment  at  hard  labor  for  any  Chinese 
persons  adjudged  to  be  unlawfully  in  the  United  States  has 
been  universally  condemned,51  and  authoritatively  pro- 
nounced unconstitutional  by  the  Supreme  Court  of  the 
United  States.52 

The  manifest  objects  of  sections  6 and  7 were  to  provide 
a system  of  regulation  and  identification  of  Chinese  la- 
borers, to  require  them  to  obtain  certificates  of  residence, 
and,  if  they  did  not  do  so  within  a year,  to  have  them  re- 
moved from  the  country.53  But  the  provision  in  section  6 
to  the  effect  that  a Chinese  laborer  who  failed  to  procure  a 
certificate  within  a year  should  be  deemed  unlawfully 
within  the  United  States  was  held  to  mean  not  that  this 
fact  should  be  held  to  be  conclusively  established  against 
him,  but  only  that  the  want  of  a certificate  should  be  prima 
facie  evidence  that  he  was  not  entitled  to  remain  in  the 
country ; that  he  should  be  so  far  presumed  not  to  be  enti- 
tled to  remain  in  the  United  States  that  the  proper  officer 
or  officers  might  arrest  him  and  take  him  before  a judge  for 
a judicial  hearing,  to  determine  the  only  facts  which, 
under  the  Act  could  have  a material  bearing  on  the  ques- 
tion as  to  whether  he  should  go  or  remain.54  In  the  ab- 
sence of  the  certificate  it  has  been  held  that  proof  of  resi- 
dence in  the  United  States  at  the  time  of  the  passage  of 
the  act  was  insufficient  to  prove  the  right  of  the  prisoner  to 
remain;  that  to  be  sufficient,  such  proof  must  be  coupled 
with  a good  and  sufficient  reason  why  the  certificate  was 
not  procured;55  and  the  provision  in  section  6 that  on  a 
satisfactory  showing  the  alien  should  be  granted  a certifi- 

50 In  re  Jew  Wong  Loy,  91  Fed.  240. 

^United  States  v.  Wong  Dep  Ken,  57  Fed.  206. 

52Wong  Wing  v.  United  States,  163  U.  S.  230,  41  Law  Ed.  140. 

53Fong  Yue  Ting  v.  United  States,  supra. 

s*Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

65 In  re  Ny  Look,  56  Fed.  81. 


96  The  Exclusion  and  Expulsion  of  Aliens. 

cate  on  payment  of  costs  was  held  to  refer  to  the  costs  of 
the  certificate  only,  and  not  to  the  costs  of  the  proceed- 
ings.56 

"It  is  a well  known  fact,”  said  the  court  in  the  case  of 
United  States  v.  Chew  Cheong,57  “that  but  few  of  the 
Chinese  in  the  United  States  made  application  for  the  cer- 
tificate of  residence  provided  for  in  the  Act  of  May  6,  1892. 
It  was  claimed  as  an  excuse  for  this  disregard  of  the  law 
that  they  were  advised  by  counsel  that  the  law  was  not 
constitutional.  It  was,  however,  sustained  in  the  case  of 
Fong  Yue  Ting  against  the  United  States.  Thereafter 
Congress  passed  the  amendatory  Act  of  November  3, 1893.” 

(E.)  The  Act  of  November  3,  1893.58 

This  act  granted  an  extension  of  six  months’  time  after 
its  passage  in  which  Chinese  laborers  within  the  limits  of 
the  United  States  and  who  were  entitled  to  remain  therein 
before  the  passage  of  the  Act  of  May  6, 1892,  might  register 
as  provided  in  the  preceding  act;59  but  this  privilege  was 
not  accorded  to  Chinese  heretofore  convicted  of  felonies 
under  Federal  or  state  laws.60 

Chinese  “Merchants”  and  “Laborers” 

In  its  second  section  the  act  defines  “laborers”  and 
“merchants,”  and  prescribes  the  evidence  by  which  persons 
calling  themselves  merchants  and  who  seek  admission  to 
the  United  States  claiming  their  right  to  enter  on  a prior 
commercial  domicile  acquired  in  this  country  may  come  in. 

“For  the  first  time  in  the  history  of  legislation  having 
for  its  purpose  the  exclusion  of  certain  Chinese  from  the 
country  or  their  deportation  when  here  in  violation  of  the 
statutes  of  the  United  States,  and  the  admission  of  certain 

56United  States  v.  T ye,  70  Fed.  318. 

6761  Fed.  200. 

6828  Stat.  at  L.  7. 

eeSection  1. 

eo  Ibid. 


Power  and  Methods. 


97 


others  to  the  country,  or  giving  the  right  to  remain,  Con- 
gress  defined  those  theretofore  designated  generally 

as  merchants  or  laborers 61  but  the  definitions  given 
under  the  term  “laborer”  do  not  imply  that  that  term  is 
restricted  to  the  classes  specifically  named.  The  privileges 
of  real  merchants  were  not  disturbed  but  were  left  as 
granted  by  the  treaty  of  1880,  the  purpose  of  section  2 
being  only  to  prevent  false  ones  from  claiming  these  privi- 
leges. Consequently  the  appropriate  provisions  of  section 
2 mean  only  that  the  interest  of  the  merchant  must  be 
real,  and  appear  in  the  partnership  articles  in  his  own 
name  and  not  that  his  name  must  appear  in  the 
firm  name  or  designation.62  In  so  far  as  the  section  pro- 
vides for  the  proof  of  mercantile  status  for  the  period  of 
one  year  prior  to  the  departure  of  returning  merchants,  ( a 
provision  unqualifiedly  held  constitutional,)63  it  has  been 
more  strictly  construed,  as  the  courts  have  uniformly  held 
that  it  applies  to  Chinese  persons  who  left  the  United 
States  prior  to  the  passage  of  the  act  as  well  as  to  those 
leaving  thereafter.64  So  far  as  the  registration  provisions 
of  the  act  are  concerned  they  have  been  construed  to  affect 
only  those  Chinamen  in  the  United  States  at  the  time  of 
the  passage  of  the  act  who  were  then  subject  to  registra- 
tion. Those  not  required  to  register  were  not  affected65 
nor  did  the  extension  of  registration,  as  before  pointed 
out66  apply  to  Chinese  persons  theretofore  convicted  of  a 
felony.  Although  section  2 provides  that  pending  the  exe- 
cution of  an  order  of  deportation  the  Chinese  person  shall 

eiTom  Hong  v.  United  States,  193  U.  S.  517,  48  Law  Ed.  772;  and  see 
United  States  v.  Yong  Yeu,  83  Fed.  832. 

62Tom  Hong  v.  United  States,  supra ; Lee  Kan  v.  United  States,  62  Fed. 
914;  see  also  Worn  Ah  Gar  v.  United  States,  94  Fed!  831;  Wong  Fong  v. 
United  States,  77  Fed.  168. 

63Li  Sing  y.  United  States,  180  U.  S.  485,  45  Law  Ed.  634. 

64United  States  v.  Loo  Way,  68  Fed.  475;  Lai  Moy  v.  United  States,  66 
Fed.  955;  Lew  Jin  v.  United  States,  66  Fed.  953;  In  re  Yee  Lung,  also  In  re 
Yue  Soon,  61  Fed.  641. 

65Jn  re  Yew  Bing  Hi,  128  Fed.  319. 

66 Ante,  p.  96. 


98  The  Exclusion  and  Expulsion  of  Aliens. 

remain  in  the  custody  of  the  United  States  marshal  and 
shall  not  be  admitted  to  bail,  the  section  has  been  held  to 
allow  the  granting  of  bail  in  deportation  proceedings  at 
any  stage  not  final.67  It  has  been  decided  that  the  Act 
of  May  6,  1882,  as  amended  by  that  of  November  3,  1893, 
was  not  repealed  in  any  of  its  parts  by  the  Act  of  April  29, 
1902.68 


(F.)  The  Act  of  August  18,  1894.69 

Final  Determination  of  Right  of  Aliens  to  Enter  Vested  in 
Administrative  Officers. 

This  act  provided  for  the  enforcement  of  the  Chinese 
exclusion  Act  of  May  5,  1892,  the  sum  of  $50,000.00,  and 
further  that  “In  every  case  where  an  alien  is  excluded  from 
admission  into  the  United  States  under  any  law  or  treaty 
now  existing  or  hereafter  made,  the  decision  of  the  appro- 
priate immigration  or  customs  officers,  if  adverse  to  the 
admission  of  such  alien,  shall  be  final  unless  reversed  on 
appeal  to  the  Secretary  of  the  Treasury.” 

This  act  was  held  constitutional  by  the  Supreme  Court 
of  the  United  States70  on  the  ground  that  not  only  was  it 
within  the  power  of  Congress  to  designate  the  conditions 
under  which  aliens  might  enter  or  remain  in  the  country, 
but  it  was  equally  within  its  power  to  vest  the  final  deter- 
mination of  such  rights  in  executive  officers,  to  the  com- 
plete exclusion  of  the  courts.  In  this  case  the  right  to 
enter  was  claimed  on  the  ground  of  commercial  domicile 
by  the  applicant,  a Chinese  merchant  who  stated  that  he 
left  the  United  States  in  1894.  In  later  cases  where  the 
right  to  enter  was  based  on  the  ground  that  the  applicant 

67 in  re  Ah  Tai,  125  Fed.  795;  and  see  Chapter  on  Deportation  Procedure, 
posi,  p.  653. 

esAh  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619;  United  States 
v.  Lee  Yen  Tai,  185  U.  S.  213,  46  Law  Ed.  878;  Tom  Heong  v.  United  States, 
193  U.  S.  517,  48  Law  Ed.  772. 

e»28  Stat.  at  L.  390. 

7oLem  Moon  Sing  v.  United  States,  158  U.  S.  538,  39  Law  Ed.  1082. 


Power  and  Methods. 


99 


was  a citizen  of  the  United  States  this  act  has  been  held  to 
apply  notwithstanding  the  claim  of  citizenship.71  The 
act  gave  no  additional  power  to  departmental  officers  but 
simply  made  their  findings  final  as  to  the  right  of  Chinese 
persons  not  laborers  to  come  into  the  United  States ; it  did 
not  affect  them  in  their  relation  with  such  persons  not 
laborers  already  in  the  United  States.72  It  has  been  held 
not  to  apply  to  alien  seamen.74 

( G. ) The  Act  of  March  3,  190175 

was  entitled  “An  act  supplementary  to  an  act,  entitled  ‘An 
act  to  prohibit  the  coming  of  Chinese  persons  into  the 
United  States/  approved  May  5,  1892,  and  fixing  the  com- 
pensation of  commissioners  in  such  cases.’7  By  this  act 
the  district  attorney  of  the  district  in  which  any  Chinese 
person  was  arrested  for  unlawful  presence  in  or  entrance 
into  this  country,  was  authorized  to  designate  the  United 
State  Commissioner  within  the  district  and  before  whom 
the  Chinese  person  should  be  taken  for  hearing.76  The 
fee  of  the  United  States  Commissioner  for  hearing  a case 
arising  under  the  Chinese  exclusion  laws  was  set  at  $5.00.77 
And  it  was  provided  that  no  warrant  of  arrest  should  be 
issued  by  United  States  Commissioners  except  upon  the 
sworn  complaint  of  the  United  States  District  Attorney 
and  other  officials  duly  enumerated  unless  the  issuance  of 
the  warrant  should  first  be  approved  or  requested  in  writ- 
ing by  the  United  States  District  Attorney  of  the  district 
in  which  issued.78 

TiUnited  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  United  States 
v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917. 

72United  States  v.  Chin  Fee,  94  Fed.  828. 

74United  States  v.  Burke,  99  Fed.  895. 

7®31  Stat.  at  L.  1093. 

76Section  1. 

77Section  2. 

78Section  3. 


100  The  Exclusion  and  Expulsion  of  Aliens. 


( H. ) The  Act  of  April  29,  1902, 79  as  Amended  and  Re-en- 
acted by  Section  5 of  the  Deficiency  Act  of  April  27, 
1904. 

Chinese  Exclusion  Laws  Made  Applicable  to  Insular  Ter- 
ritory. 

This  act,  as  amended,  re-enacted  without  limitation  all 
the  laws  in  force  on  the  date  of  its  passage  regarding  the 
admission  of  Chinese  persons  into  the  United  States  spe- 
cially including  in  such  re-enactment  sections  5,  6,  7,  8,  9, 
10  and  11,  13  and  14  of  the  Act  of  September  13,  1888,  and 
extended  and  continued  the  same  in  so  far  as  they  were 
not  inconsistent  with  treaty  obligations.  The  act  was 
made  applicable  to  the  island  territory  under  the  juris- 
diction of  the  United  States.80  It  further  provided  that  the 
Secretary  of  Commerce  and  Labor  was  authorized  to  make 
such  regulations  on  the  subject  of  Chinese  exclusion  not  in- 
consistent with  the  laws  of  the  land  as  he  might  deem 
necessary  and  proper  to  execute  the  provisions  of  the  act 
and  the  acts  continued  and  extended  thereby81  and  of  the 
treaty  of  December  8,  1894.82  Further  provision  was  made 
for  the  registration  through  certificates  of  residence  in  the 
insular  territory  wherein  they  might  reside  of  Chinese 
laborers  in  any  of  the  insular  territory  of  the  United 
States  with  the  exception  of  Hawaii;  and  authorized  the 
Philippine  Commission  to  make  all  the  necessary  regula- 
tions for  the  enforcement  of  this  provision  in  the  Philip- 
pine Islands.83 

7932  Stat.  at  L.,  part  1,  p.  176;  33  Stat.  at  L.  394-428. 

8°Section  1. 

81By  the  Act  of  Feb.  14,  1903  (32  Stat.  at  L.  825)  the  Commissioner 
General  of  Immigration,  the  Bureau  of  Immigration,  and  the  Immigration 
Service  were  transferred  from  the  Treasury  Department  to  the  Department 
of  Commerce  and  Labor,  and  by  the  Act  of  June  6,  1900  (31  Stat.  at  L. 
588-611)  the  Commissioner  General  of  Immigration  was  assigned  the  ad- 
ministration of  the  Chinese  exclusion  laws  under  the  direction  of  the  Secre- 
tary of  Commerce  and  Labor. 

82 Ante,  p.  30. 

ssSection  4. 


Power  and  Methods. 


101 


This  act  was  passed  in  view  of  the  expiration  on  May  5, 
1902,  of  the  Act  of  May  5,  1902,  and  for  the  purpose  of 
continuing  the  exclusion  laws  in  force  during  the  existence 
of  the  treaty  with  China  of  December  8,  1894.84  It  con- 
tinued the  exclusion  laws  then  in  force  only  so  far  as  the 
same  were  not  inconsistent  with  treaty  obligations,  to  wit, 
those  of  the  treaty  of  December  8,  1894,  which  provide 
for  the  exclusion  of  Chinese  laborers  from  the  United 
States  only  until  December  8,  1904.85  That  treaty  was 
denounced  by  China  and  expired  under  such  denunciation 
in  December  of  that  year.  The  Act  of  1902  did  not  repeal 
the  Acts  of  1892  and  1893  in  any  way.86 

(I.)  The  Act  of  February  14,  1903.87 

Transfer  of  Administration  of  Chinese  Exclusion  Laws 
from  the  Treasury  Department  to  the  Department  of  Com - 
merce  and  Labor. 

This  act,  entitled  “An  act  to  establish  the  Depart- 
ment of  Commerce  and  Labor,”  transferred  all  matters  re- 
lating to  the  regulation  of  the  admission  of  Chinese  from 
the  jurisdiction  of  the  Secretary  of  the  Treasury  to  the 
Department  of  Commerce  and  Labor.88 

( J. ) The  Act  of  April  27,  1904.89 

Section  5 of  this  act  amends  section  1 of  the  Act  of  April 
29,  1902, 90  re-enacting  extending  and  continuing  the  exist- 
ing exclusion  laws  then  in  force  and  was  passed  in  view 

8*Hong  Wing  v.  United  States,  142  Fed.  128. 

86Tom  Heong  v.  United  States,  193  U.  S.  517,  48  Law  Ed.  772;  Ah  How 
v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619;  United  States  v.  Lee  Yen 
Tai,  185  U.  S.  213,  46  Law  Ed.  878. 

8732  Stat.  at  L.  825. 

88And  see  United  States  v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917. 

8933  Stat.  at  L.  428. 

e°Stat.  at  L.  part  1,  p.  176;  ante,  p.  100. 


102  The  Exclusion  and  Expulsion  of  Aliens. 


of  the  coming  expiration  on  December  8,  1904,  of  the 
treaty  with  China  of  December  8,  1894,  and,  it  has  been 
said,  for  the  purpose  of  continuing  in  force  the  existing 
exclusion  laws  after  such  expiration  regardless  of  treaty 
obligations,91  and  in  so  doing  kept  in  force  sections  5 to 
14  inclusive  of  the  Act  of  September  13,  1888,  with  the 
exception  of  section  12. 

( K. ) Application  of  the  Immigration  Acts  to  Chinese. 

Section  36  of  the  immigration  Act  of  March  3,  1903, 92 
provided  that  all  acts  and  parts  of  acts  inconsistent  with 
the  act  itself  were  thereby  repealed  and  that  the  act  should 
not  be  construed  to  repeal,  alter  or  amend  existing  laws 
relating  to  the  immigration  or  exclusion  of  Chinese  per- 
sons or  persons  of  Chinese  descent.  Section  43  of  the  pres- 
ent immigration  law93  provides  that  “this  act  shall  not  be 
construed  to  repeal,  alter  or  ame'nd  existing  law  relating 
to  the  immigration  or  exclusion  of  Chinese  persons  or 

persons  of  Chinese  descent ” There  can  be  no  doubt 

that  this  act  applies  to  Chinese  although  by  its  terms  it 
specially  provides  that  all  special  legislation  in  regard 
to  them  in  the  form  of  the  Chinese  exclusion  acts  shall  not 
be  affected  by  it;  and  this  appears  all  the  more  clear  in 
view  of  the  proviso  of  the  21st  section  of  the  immigra- 
tion act  to  the  effect  that  in  case  the  Secretary  of  Com- 
merce and  Labor  shall  be  satisfied  that  an  alien  has  been 
found  in  the  United  States  in  violation  of  this  act,  or  is 
subject  to  deportation  under  the  provisions  of  this  act 
or  of  any  law  of  the  United  States  he  shall  cause  such 
alien  to  be  deported. 

The  courts  have  differed  as  to  the  extent  to 
which  the  immigration  acts  apply  to  members  of 
the  Chinese  race.  On  the  one  hand  it  has  been  held 
that  the  exclusion  acts  are  to  be  read  in  pari  materia  there- 

siHong  Wing  v.  United  States,  142  Fed.  128. 

9232  Stat.  at  L.  part  1,  p.  1213. 

»3 Act  of  Feb.  20,  1907,  34  Stat.  at  L.,  part  1,  p.  898. 


Power  and  Methods. 


103 


with  in  their  application  to  Chinese  aliens  seeking  en- 
trance to  this  country.94  But  when  this  case  was  brought 
to  the  Circuit  Court  of  Appeals  it  was  held  that  the  special 
provisions  of  the  Act  of  February  20th,  1907,  relating  to 
deportation  do  not  apply  to  Chinese  laborers  because  they 
are  already  excluded  by  the  exclusion  acts  which  provide 
specially  for  their  deportation.95  This  would  seem  to  be 
on  the  principle  that  the  Act  of  February  20th,  being  a 
general  statute,  silently  excludes  from  its  operation  the 
cases  provided  for  in  the  special  statutes  applicable  to 
Chinese  which  preceded  it,  and  that  consequently  it  applies 
only  to  such  Chinese  as  are  not  subject  to  the  operation 
of  the  particular  Chinese  enactment.  If  an  alien  is  dis- 
qualified under  the  Chinese  exclusion  acts  it  is  because  he 
is  a Chinese  person  who  has  not  shown  that  he  is  entitled 
to  enter  as  provided  by  the  treaties  of  this  country  with 
China  or  by  the  acts  of  Congress  applicable  to  his  case; 
not  because  he  is  an  alien  immigrant.  It  is  plain  that  if 
in  addition  to  his  disqualifications  as  a member  of  the 
Chinese  race  he  has  others  which  prohibit  his  entrance  as 
an  alien  immigrant  he  is  a proper  subject  of  exclusion 
under  the  immigration  laws  as  well  as  those  regulating  the 
admission  of  Mongolians.  But  the  case  has  arisen  where 
the  identical  disability  which  disqualified  him  as  a China- 
man under  the  Chinese  exclusion  acts,  disqualifies  him  as 
an  alien  under  the  immigration  acts.  In  the  case  of  Wong 
You  v.  United  States96  the  question  before  the  court  was 
whether  he  should  be  deported  under  the  Chinese  exclusion 
acts  or  the  immigration  act,  and  the  court  held  on  the 
principle  of  statutory  construction  above  cited  that  in  such 
a case  deportation  under  the  Chinese  exclusion  act  was 
the  correct  procedure.  The  question  involved  in  such 
cases  is  not  whether  the  Government  has  the  right  to  de- 
port but  whether  the  person  held  for  deportation 

94Ex  parte  Wong  You,  176  Fed.  933. 

ssWong  You  v.  United  States,  181  Fed.  313. 

96  Hid. 


104  The  Exclusion  and  Expulsion  of  Aliens. 

has  the  right  to  demand  that  the  deportation  pro- 
ceedings be  those  designated  under  the  exclusion 
acts  and  not  under  the  immigration  act.  That  is, 
whether  he  shall  be  brought  before  a United  States 
Commissioner  or  before  the  Secretary  of  Commerce 
and  Labor  or  his  deputy.  If  before  the  former,  he  has  as 
a matter  of  right  his  appeal  from  the  excluding  decision 
of  the  commissioner  to  the  Federal  judge  of  the  district; 
if  before  the  latter,  no  such  right  is  given  by  statute.  In 
other  words,  the  practical  question  in  such  a case  with 
both  the  person  proceeded  against  and  the  department  is 
whether  the  former  is  entitled  to  a judicial  or  administra- 
tive determination  of  his  right  to  remain  in  the  United 
States.  As  stated  on  a later  page,97  there  seems  to  be 
no  reason  why  Congress  may  not,  in  the  exercise  of  its 
sovereign  right  to  exclude  or  expel,  provide  at  its  option, 
one  or  more  methods  best  adapted  to  bring  about  the  de- 
sired result;  and  if  this  is  so  the  reason  for  applying  the 
rule  of  statutory  construction  adopted  by  the  court  in  the 
case  last  mentioned  does  not  clearly  appear.98 

(L.)  Crimes  and  Penalties  Under  the  Chinese  Exclusion 

Acts. 

Unlawfully  Bringing  Chinese  Persons  into  the  United 
States. 

The  Chinese  Exclusion  Act  of  1882,  as  amended  by  that 
of  1884,  penalized  the  master  of  a vessel  who  should 
knowingly  bring  in  or  attempt  to  land  or  permit  to  be 
landed,  any  Chinese  laborer,  with  a fine  of  $500  and  im- 
prisonment not  exceeding  one  year  as  an  additional  pen- 
alty which  might  or  might  not  be  imposed;99  and  further 

97 Post,  p.  277. 

»8The  case  of  Wong  You  v.  United  States  was  reversed  by  the  Supreme 
Court  of  the  United  States.  See  Chapter  on  Deportation  Procedure,  post , 
p.  673. 

»9Section  2. 


Power  and  Methods. 


105 


provided  in  its  eleventh  section  that  any  person  who  should 
knowingly  bring  in  or  cause  to  be  brought  into  the  United 
States  by  land,  or  who  should  aid  or  abet  the  same,  or  aid 
or  abet  the  landing  in  the  United  States  from  any  vessel  of 
any  Chinese  person  not  lawfully  entitled  to  enter  the 
United  States  should  be  deemed  guilty  of  a misdemeanor 
and  be  fined  in  a sum  not  exceeding  $1,000  and  be  impris- 
oned for  a term  not  exceeding  one  year. 

The  Act  of  May  6,  1882,  was  held  not  to  apply  to  the 
act  of  bringing  back  to  the  United  States  a Chinese  mem- 
ber of  the  crew  who  had  shipped  with  the  master  from  San 
Francisco  for  the  return  voyage;100  nor  for  bringing  in  a 
Chinese  subject  from  Hong  Kong.1 

The  Act  of  October  1,  1888,  enacted  to  supplement  the 
Act  of  1882,  as  amended  by  the  Act  of  1884,  provided  in  its 
third  section  that  the  liabilities,  penalties,  and  forfeitures 
imposed  by  sections  2,  10,  11  and  12  of  that  act  were 
thereby  extended  and  made  applicable  to  the  provisions  of 
this  Act  of  October  1,  1888.  Section  9 of  the  Act  of  Sep- 
tember 13,  1888, 2 has  been  held  to  have  been  constantly  in 
force  since  the  passage  of  the  act,  and,  among  other  sec- 
tions, was  specifically  re-enacted  by  the  Act  of  April  29, 
1902. 

Section  9 of  the  Act  of  September  13,  1888,  provided 
“that  the  master  of  any  vessel  who  shall  knowingly  bring 
within  the  United  States  on  such  vessel  and  land,  or  at- 
tempt to  land,  or  permit  to  be  landed  any  Chinese  laborer 
or  other  Chinese  person,  in  contravention  of  the  provisions 
of  this  act,  shall  be  deemed  guilty  of  a misdemeanor  and, 
on  conviction  thereof,  shall  be  punished  with  a fine  of  not 
less  than  five  hundred  dollars  nor  more  than  one  thousand 

1°0 In  re  Ah  Sing,  13  Fed.  286. 

HJnited  States  v.  Douglas,  17  Fed.  364,  no  longer  authoritative,  in  view 
of  section  3 of  the  Act  of  September  13,  1888,  reading  1 1 The  provisions  of 
this  act  shall  apply  to  all  persons  of  the  Chinese  race,  whether  subjects 
of  China  or  any  other  foreign  power.’ ’ See  In  re  Ah  Sing,  18  Fed.  28. 

z Supra. 


106  The  Exclusion  and  Expulsion  of  Aliens. 

dollars,  in  the  discretion  of  the  court,  for  every  Chinese 
laborer  or  other  person  so  brought,  and  may  also  be  im- 
prisoned for  a term  of  not  less  than  one  year,  nor  more 
than  five  years,  in  the  discretion  of  the  court.”  3 

“ Knowingly  Bring  ” 

The  word  “knowingly”  has  been  held  to  apply  not  only 
to  the  words  immediately  succeeding,  “being  within  the 
United  States,”  but  to  the  landing  or  attempted  landing,  or 
the  permitting  to  be  landed  of  any  Chinese  person.4  And, 
as  Chinese  seamen  are  not  excluded  by  the  terms  of  the 
act,  the  master  cannot  be  indicted  under  this  section  for 
bringing  Chinese  employed  on  his  vessel  to  the  ports  of  the 
United  States;5  this  irrespective  of  whether  the  port  at 
which  such  a seaman  is  allowed  to  land  is  a terminus  or 
not,  as  those  the  landing  of  which  was  made  penal  by  the 
statute  are  Chinamen  excluded  absolutely  or  conditionally 
under  the  acts.6 

The  Indictment . 

An  indictment  under  this  section  which  fails  to  allege 
that  the  landing  was  “knowingly”  permitted  is  insufficient7 
and  the  indictment,  in  order  to  stand,  must  negative  the  ex- 
ceptions of  the  section;8  but  an  indictment  is  sufficient 
which  alleges  that  a Chinese  person  was  allowed  to  land 
from  a vessel,  and  that  such  landing  was  not  by  reason 
“of  any  necessity,”  as  that  allegation  sufficiently  negatives 
the  exceptions  of  the  section.9  However,  if  the  indictment 
fails  to  state  that  the  “bringing”  a Chinese  seaman  to  the 

3Thereby  repealing  the  corresponding  section  of  the  Act  of  May  6,  1882, 
as  amended  by  that  of  July  5,  1884.  United  States  v.  Durie,  170  Fed.  624. 

^United  States  v.  Walker,  156  Fed.  987 ; United  States  v.  Rout,  170  Fed. 
201. 

sUnited  States  v.  Jamieson,  185  Fed.  165. 

0 lb  id. 

7 Supra,  note  1. 

sUnited  States  v.  Wood,  159  Fed.  187;  United  States  v.  Wood,  168  Fed. 
438. 

^United  States  v.  Graham,  164  Fed.  654. 


Power  and  Methods. 


107 


United  States  was  done  with  the  intent  of  leaving  him  in 
this  country,  it  is  faulty  and  will  be  quashed,10  for  the 
obvious  reason  that  a Chinese  seaman  brought  to  the 
United  States  merely  in  his  capacity  as  such  and  with  no 
intention  on  his  part  or  that  of  the  master  of  a cessation 
of  his  duties  is  not  within  the  classes  absolutely  or  condi- 
tionally excluded  by  the  act. 

Evidence 

of  landing  or  attempted  landing  is  sufficiently  shown  where 
it  appears  that  the  master  brought  his  vessel  to  a mooring 
point,  and  there  received  the  Chinese  inspector  on  board 
without  revealing  the  presence  on  the  vessel  of  eight  Chi- 
nese whose  concealment  in  the  hold  was  detected  by  the  in- 
spector.11 

Aiding  or  Abetting  the  Landing  of  Chinese  Persons. 

Section  11  of  the  Act  of  May  5,  1882,  as  amended  by  the 
Act  of  1884,  reads  as  follows:  “That  any  person  (thereby 
including  of  course,  the  master  of  a vessel)  who  shall 
knowingly  bring  into  or  cause  to  be  brought  into  the 
United  States  by  land,  or  who  shall  aid  or  abet  the  same,  or 
aid  or  abet  the  landing  in  the  United  States  from  any 
vessel,  of  any  Chinese  person  not  lawfully  entitled  to  enter 
the  United  States,  shall  be  deemed  guilty  of  a misde- 
meanor, and  shall  on  conviction  thereof,  be  fined  in  a sum 
not  exceeding  one  thousand  dollars,  and  imprisoned  for  a 
term  not  exceeding  one  year.” 

It  has  been  said — by  way  of  dictum — that  when,  pending 
? hearing  on  habeas  corpus,  the  vessel  on  which  petitioner 
has  arrived  has  left  port,  and  the  master  refuses  to  re- 
ceive him  on  his  return,  such  refusal  constitutes  an  aiding 
and  abetting  or  permitting  the  land  of  such  alien,  and  that 
the  master  and  ship  incur  the  penalties  prescribed  by  the 
act.12  The  act  which  in  common  with  the  aiding  or  abet- 

10United  States  v.  Jamieson,  185  Fed.  165. 

nGerard  v.  United  States,  159  Fed.  421. 

12Case  of  the  Unused  Tag,  21  Fed.  701. 


108  The  Exclusion  and  Expulsion  of  Aliens. 

ting  thereof  is  prohibited  by  this  section  is  the  “bringing 
into  or  causing  to  be  brought  into  the  United  States  by 
land”  or  the  “landing  in  the  United  States  from  any 
vessel,”  of  a Chinese  person.  There  was  no  question  here 
of  bringing  in  by  land,  as  the  alien  landed  upon  the  vessel 
which  brought  him.  The  Supreme  Court  has  defined  the 
words  “to  land”  as  meaning  to  go  ashore.  “The  words 
must  be  taken  in  their  literal  sense.  ‘Landing  from  such 
vessel’  takes  place  and  is  complete  the  moment  the  vessel 
is  left  and  the  shore  is  reached.”  13  In  the  case  under  dis- 
cussion it  was  stated  that  the  failure  to  take  back  on  board 
would  be  aiding  or  abetting  a landing,  although  in  point 
of  fact  the  vessel  had  left  the  United  States  and  returned 
before  the  refusal  to  receive  on  board  took  place.  There 
would  seem  to  be  considerable  doubt  as  to  the  correctness 
of  this  view,  both  on  account  of  the  obvious  difference  exist- 
ing between  the  act  of  landing  an  alien  and  taking  him 
back  on  board,  as  well  as  on  account  of  the  fact  that  the 
act  held  to  constitute  the  aiding  or  abetting,  to  wit,  the 
refusal  to  receive  on  board,  was  separated  by  months  in 
point  of  time  from  the  original  landing  of  the  alien  from 
the  vessel.  This  provision,  like  other  penal  provisions 
should  be  strictly  construed;  and  the  extremely  broad  in- 
terpretation on  which  the  view  was  based  would  certainly 
seem  to  be  open  to  criticism.  Such  appears  to  be  the  view 
taken  in  a later  decision14  holding  that  the  aiding  and 
abetting  of  the  landing  of  Chinese  persons  is  criminal  only 
in  those  cases  in  which  the  bringing  of  such  persons  is  ac- 
complished in  the  same  vessel  and  on  the  voyage  culminat- 
ing at  the  time  of  the  landing.15 

i3Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 

^United  States  v.  Trumbull,  46  Fed.  755. 

!5lt  has  been  held  that  the  Act  of  April  29,  1902,  by  re-enacting  existing 
Chinese  exclusion  laws,  and  making  them  applicable  to  the  Island  territory 
under  the  jurisdiction  of  the  United  States,  makes  the  aiding  and  abetting 
of  the  landing  on  the  mainland  territory  of  the  United  States  of  a Chinese 
person  not  legally  entitled  to  enter  therein  from  such  island  territory,  a mis- 
demeanor. U.  S.  v.  Wong  Kock  Yii,  3 U.  S.  D.  Ct.  Hawaii  87. 


Power  and  Methods. 


109 


The  Indictment. 

An  indictment  for  landing  or  abetting  a landing  in  the 
United  States  from  any  vessel  of  any  Chinese  person  not 
lawfully  entitled  to  land  is  fatally  defective  where  it  fails 
to  allege  that  such  person  was  brought  into  the  country 
in  the  vessel  named  or  that  he  was  ever  unlawfully  brought 
into  the  United  States.16  While  indictments  under  the 
penal  provisions  of  these  acts  must  comply  with  the  strict 
requirements  of  ordinary  criminal  procedure,  it  has  been 
held  that  objections  thereto  on  the  ground  of  repugnance 
cannot  be  reversed  on  appeal  when  not  raised  in  the  lower 
court;17  and  generally  speaking  an  indictment  will  be  sus- 
tained if  there  is  any  act  under  which  it  can  be  enforced 
even  though  that  act  be  not  specifically  mentioned  there- 
in.18 

Forfeiture  of  Vessel  for  Violation  of  the  Statute. 

Section  10  provided  for  the  forfeiture  of  the  vessel  whose 
master  should  knowingly  violate  any  of  the  provisions  of 
the  act,  but  a vessel  stolen  from  its  owner  and  used  while 
out  of  his  control,  without  his  knowledge  or  consent  in 
bringing  in  Chinese  laborers  in  violation  of  law,  does  not 
for  that  cause  become  liable  to  forfeiture.  To  work  such 
forfeiture  a master  must  knowingly  violate  the  statute.19 
Section  9 of  the  Act  of  September  13, 1888,  punished  with  a 
fine  of  not  less  than  five  hundred  dollars  and  imprison- 
ment of  not  less  than  one  or  more  than  five  years  the 
master  of  a vessel  knowingly  bringing  within  the  United 
States  on  such  vessel,  and  landing  or  attempting  to  land 
or  permitting  to  be  landed  any  Chinese  laborer  or  other 
Chinese  person  in  contravention  of  the  provisions  of  the 
act;  and  it  was  held  that  where  there  was  an  agreement 
by  the  owner  to  sell  a schooner  by  payment  on  install- 

ieUnited  States  v.  Trumbull,  46  Fed.  755. 

17Sims  v.  United  States,  121  Fed.  515. 
isUnited  States  v.  Wood,  168  Fed.  438. 
i9United  States  v.  “George  E.  Wilton,”  43  Fed.  606. 


110  The  Exclusion  and  Expulsion  of  Aliens. 

ments,  the  title  to  remain  in  the  owner  until  full  payment 
of  the  purchase  price,  and  the  purchaser  was  put  in  posses- 
sion and  appointed  master,  this  was  held  sufficient  to  au- 
thorize the  appointment  of  a new  master  by  the  purchaser, 
and  to  render  the  vessel  subject  to  condemnation  and  sale 
for  the  importation  by  the  new  master  of  Chinese  contrary 
to  the  act.20  But  section  10  thereof  excepted  from  the 
terms  of  section  9 any  master  whose  vessel  should  come 
within  the  jurisdiction  of  the  United  States  in  distress  or 
under  stress  of  weather  or  touching  at  any  port  of  the 
United  States  on  its  voyage  to  any  foreign  port  or  place; 
but  Chinese  persons  or  laborers  on  such  vessels  were 
not  permitted  to  land  except  in  case  of  necessity  and  must 
depart  with  the  vessel  on  leaving  port.  The  word  vessel 
includes  tackle,  furniture,  apparel  and  appurtenances,  and 
among  the  latter  the  ship’s  instruments,  compasses,  chro- 
nometers, etc.21  It  was  held  in  an  early  Federal  case  that 
a ship  touches  at  a port  of  the  United  States  within  the 
meaning  of  the  act  when  she  calls  there  for  orders  or  for 
a cargo  destined  to  a foreign  port.22 

Counterfeiting  Certificates  Under  the  Chinese  Exclusion 
Acts. 

Section  7 of  the  Act  of  1882  provides  that  any  person 
who  shall  knowingly  and  falsely  alter  or  substitute  any 
name  for  the  name  written  in  such  certificate  or  forge  any 
such  certificate,  or  knowingly  utter  any  forged  or  fraudu- 
lent certificate,  or  falsely  personate  any  person  named  in 
any  such  certificate,  shall  be  deemed  guilty  of  a misde- 
meanor ; and  upon  conviction  thereof  shall  be  fined  in  the 
sum  not  exceeding  one  thousand  dollars,  and  imprisoned  in 
a penitentiary  for  a term  of  not  more  than  five  years. 

Section  11  of  the  Act  of  September  13,  1888,  character- 
ized as  a misdemeanor  and  penalized  with  fine  and  irnpris- 

zoThe  Frolic,  148  Fed.  918. 

21  The  Frolic,  148  Fed.  921. 

25>/n  re  Moncan,  14  Fed.  44. 


Power  and  Methods. 


Ill 


onment  the  act  of  knowingly  and  falsely  altering  or  substi- 
tuting and  name  for  the  name  written  in  any  certificate 
required  by  the  act,  or  forging  such  certificate,  or  know- 
ingly uttering  any  forged  or  fraudulent  certificate,  or  for 
a person  other  than  the  one  to  whom  the  certificate  was 
issued  falsely  to  present  the  same.  Unlike  the  Act  of  1882, 
which  penalizes  the  alteration  or  falsification  of  the  “sec- 
tion six”  certificate  only,  section  11  includes  within  its 
scope  “any  certificate  herein  required”  thereby  including 
the  return  certificate  provided  by  section  7 thereof. 

Section  8 of  the  Act  of  May  5,  1892,  penalized  the  coun- 
terfeiting of  the  certificates  of  registration  in  almost  the 
same  terms  used  in  section  11  of  the  Act  of  1888;  except 
that,  whereas  under  the  prior  act  fine  and  imprisonment 
constituted  the  penalty,  under  the  later  statute  either  fine 
or  imprisonment  may  be  imposed. 

Failure  to  Deliver  Lists  of  Chinese  Passengers. 

Section  8 of  the  Act  of  May  5,  1882,  provides  that  the 
captain  of  a vessel  coming  to  a United  States  port  and 
bringing  Chinese  passengers,  shall  deliver  a list  of  such 
passengers,  duly  sworn  to  by  him  to  the  Collector  of  Cus- 
toms of  the  district  in  which  the  vessel  arrives,  and  that 
any  refusal  or  wilful  neglect  of  such  master  so  to  do  will 
render  him  subject  to  the  penalties  and  forfeitures  pro- 
vided for  refusal  or  neglect  to  report  and  deliver  a manifest 
of  the  cargo. 

3.  The  Operation  of  the  Immigration  and  Chinese  Ex- 
clusion Laws  in  the  Insular  Possessions. 

(A.)  The  Philippine  Islands. 

(1.)  In  General. 

The  Act  of  April  29,  1902, 23  which  provided  in  its  second 
section  for  the  application  of  the  Chinese  exclusion  laws 
to  the  Island  territory  under  the  jurisdiction  of  the  United 

2332  Stats.,  part  1,  p.  176.  Ante,  p.  100. 


112  The  Exclusion  and  Expulsion  of  Aliens. 

States,  and  in  its  fourth  section  for  the  registration  of 
Chinese  laborers  in  the  Philippine  Islands,  and  author- 
ized the  Philippine  Commission  to  make  all  regulations 
and  provisions  for  carrying  out  the  purpose  of  the  act 
was  followed  by  Act  No.  702  of  the  Philippines  Commis- 
sion,24 which  was  enacted  for  the  special  purpose  of  carry- 
ing into  effect  and  enforcing  the  provisions  of  section  4. 

On  April  14,  1899,  the  War  Department  issued  Circular 
No.  13,  signed  by  the  acting  Secretary  of  War,  in  which 
it  was  stated  that:  “The  laws  and  regulations  governing 
immigration  to  the  United  States  are  hereby  declared 
to  be  in  effect  in  the  territory  under  government  of  the 
military  forces  of  the  United  States,  but  collectors  of 
customs  are  directed  to  enforce  said  laws  and  regulations 
until  the  establishment  of  immigration  stations  in  the  said 

territory ” On  June  6,  1899,  the  acting  Secretary 

of  War  issued  an  order  in  which  he  stated  that  in  accord- 
ance with  the  provisions  of  Circular  No.  13  he  proclaimed, 
published  and  applied  to  the  Philippine  Islands  immigra- 
tion regulations  for  the  information  and  guidance  of  all 
concerned.25  These  regulations  briefly  required  enforce- 
ment of  all  the  acts  of  Congress  relating  to  immigration 
published  prior  to  June  6,  1899,  and  the  collectors  of  cus- 
toms of  the  islands  were  charged  with  the  execution  of  the 
immigration  and  labor  laws.  Article  III  of  these  regula- 
tions provides  that  collectors  of  customs  shall  employ  all 
customs,  immigration  and  other  officers  assigned  to  them 
for  duty  in  the  enforcement  of  the  immigration  acts;  and 
all  such  officers  are  hereby  designated  and  hereby  author- 
ized to  act  as  immigration  officers.  Pursuant  to  the  re- 
quirements of  these  regulations  the  collector  of  customs 
for  the  Philippine  Archipelago  issued  his  Circular  No.  4 
on  December  31, 1902,  by  which  he  notified  all  customs  col- 

24V0I.  2,  Pub.  Laws  enacted  by  the  Philippines  Commission,  p.  363;  Com- 
pilation of  the  Acts  of  the  Philippine  Commission,  secs.  3858-68,  incl.,  p. 
1138. 


Power  and  Methods. 


113 


lectors  that  those  regulations  were  to  be  enforced  as  well 
as  the  acts  of  Congress  relating  to  immigration.  So  that 
at  the  time  Congress  passed  the  immigration  Act  of  March 
3,  1903,  the  Acts  of  March  3,  1875, 26  August  3,  1882, 27  Feb- 
ruary 26,  1885, 28  and  the  Chinese  exclusion  Act  of  June  6, 
1900, 29  were  enforced  in  the  Philippines  by  the  collectors 
of  customs,  their  inspectors  and  immigration  officers,  with 
the  right  of  appeal  to  the  insular  collector  under  the  super- 
vision and  direction  of  the  Secretary  of  War  and  the  mem- 
bers of  the  Philippine  Commission. 

The  Chinese  exclusion  acts  were  also  administered  and 
enforced  by  the  collectors  of  customs  of  the  Islands  and 
their  immigration  officers  and  continue  to  be  so  enforced 
by  them,  although  by  the  Act  of  June  6,  1900,  the  Commis- 
sioner General  of  Immigration  was  charged  with  the  en- 
forcement of  that  law  and  although  by  the  provisions  of 
the  Act  of  Congress  of  April  29,  1902, 30  the  Chinese  exclu- 
sion laws  were  made  applicable  to  the  Philippine  Islands. 
In  the  Customs  Administrative  Act  passed  by  the  Philip- 
pine Commission  February  6,  1902, 31  it  is  made  the  duty 
of  the  customs  service  to  execute  the  laws  relating  to 
immigration,  and  by  section  nineteen  thereof  it  is  made  the 
duty  of  the  insular  collector  to  make  and  promulgate  gen- 
eral rules  and  regulations  not  inconsistent  with  the  law 
and  subject  to  the  approval  of  the  Secretary  of  Finance 
and  Justice,  directing  the  manner  of  executing  the  cus- 
toms laws  and  laws  relating  to  commerce  and  immigra- 
tion.32 

In  summing  up  the  effect  of  the  organic  act  of  the  Phil- 

2618  Stat.  at  L.,  part  3,  p.  477. 

2722  Stat.  at  L.,  p.  214. 

2823  Stat.  at  L.,  p.  332. 

2931  Stat.  at  L.,  p.  610. 

8032  Stat.  at  L.,  p.  428. 

31Public  Laws  of  the  Philippine  Commission,  Vol.  1,  p.  788,  No.  355. 

32The  above  is  taken  almost  literally  from  the  case,  entitled  In  re  Allen, 
2 Philippine  Supreme  Court  Reports,  p.  630. 


114  The  Exclusion  and  Expulsion  of  Aliens. 


ippine  Islands33  with  particular  reference  to  sections  2,  3, 
86  and  87  thereof,34  and  also  the  Spooner  amendment  of 
March  2,  1901,  the  Supreme  Court  of  the  Philippine 
Islands  says:35  “It  thus  appears  that  Congress  specially 
authorized  the  President  to  control  the  commercial  inter- 
course with  the  Islands  by  such  rules  as  he  might  deem 
most  conducive  to  the  public  interests ; that  that  body  rati- 
fied his  action  in  creating  the  Commission,  authorizing  it 
to  exercise  powers  of  government  to  the  extent  and  in  the 
manner  and  form  and  subject  to  the  control  set  forth  in 
his  instructions,36  which  instructions  made  all  their  acts 
subject  to  the  approval  of  the  Secretary  of  War;  that  Con- 
gress ratified  the  acts  of  the  Commission  in  organizing 
all  of  its  departments  of  government  including  the  immi- 
gration bureau It  is  difficult  if  not  impossible  to 

consider  the  foregoing  action  taken  by  the  President  and 
the  Secretary  of  War,  to  read  the  acts  of  Congress  and 
the  acts  of  the  Philippine  Commission  referred  to  above 
as  well  as  the  orders,  rules,  regulations  and  circulars  re- 
lating to  immigration  without  reaching  the  conclusion 
that  the  whole  administration  of  affairs  in  these  islands 
vested  in  the  Executive,  had  been  exercised  down  to  March 
3,  1903,  by  the  President  personally  or  through  the  War 
Department  and  the  Secretary  of  War,  or  the  Commission. 
Congress  was,  of  course,  aware  of  this  exercise  of  power 
and  authority  when  the  immigration  laws  were  revised  on 

33Act  of  Congress,  July  1,  1902,  32  Stat.  at  L.  691;  Compilation  Acts 
of  the  Philippine  Commission,  p.  22. 

34Ratifying  the  acts  of  the  President  taken  by  virtue  of  the  authority 
vested  in  him  as  Commander-in-Chief  of  the  Army  and  Navy  as  set  forth  in 
his  order  of  July  12,  1898,  providing  for  a tariff  of  duties  and  taxes  to  be 
levied  and  collected  at  the  ports  of  the  Philippines;  providing  that  the 
President  shall  until  otherwise  provided  by  Congress  continue  to  regulate 
and  control  commercial  intercourse  in  the  Islands  by  rules  and  regulations 
conducive  to  the  public  interest  and  general  welfare;  reserving  the  power 
and  authority  in  Congress  to  annul  laws  passed  by  the  Philippine  govern- 
ment ; and  continuing  the  Bureau  of  Insular  Affairs. 

*zln  re  Allen,  Ibid. 

sePresident  Js  Instructions,  April  7,  1900. 


Power  and  Methods. 


115 


that  date,  and  was  aware  that  these  immigration  laws  had 
been  executed  in  the  Islands  under  the  authority  and  su- 
pervision of  the  Secretary  of  War  and  the  Philippine  Com 
mission,  and  that  immigration  inspectors  had  been  ap- 
pointed pursuant  to  his  authority In  promulgating 

this  act  of  Congress  in  these  islands  Governor  Taft  stated 
that  it  had  been  decided  by  the  legal  adviser  of  the  Sec- 
retary of  War  that  while  this  law  in  its  restriction  upon 
the  admission  of  aliens  into  the  United  States  applies  to 
the  Philippines,  the  provisions  therein  made  for  the  en- 
forcement of  the  law  by  the  Secretary  of  the  Treasury,  De- 
partment of  the  United  States,  and  the  Commissioner  Gen- 
eral of  Immigration  do  not  apply  here,  and  that  the  new 
immigration  law  should  be  enforced  in  the  same  manner  in 
these  islands  as  the  previous  law  on  the  same  subject  was 
enforced — that  is  through  the  collector  of  customs  and  his 
subordinate  officers. 

The  Secretary  of  the  Treasury  must  have  also  given  a 
similar  construction  to  this  law,  otherwise  he  would  have 
without  doubt  have  appointed  immigration  inspectors  and 
established  immigration  stations  in  the  islands  long  ago — 
in  fact  as  far  back  as  April  29,  1902,  when  the  Chinese  ex- 
clusion act  was  made  applicable  to  the  Philippines,  he 
being  then  charged  with  its  enforcement. 

It  follows  that  these  two  departments  of  the  government, 
the  two  departments  concerned  in  the  enforcement  of  the 
immigration  and  exclusion  laws,  have  held  that  the  duty 
of  administering  these  laws  in  the  Philippines  was  to  be 
continued  in  the  customs  department  of  the  islands,  and 

by  its  immigration  inspectors It  follows  that  until 

such  time  as  the  Secretary  of  the  Treasury  appoints  others 
to  execute  the  immigration  laws  the  administration  re- 
mains  in  the  hands  of  those  appointed  by  the  Presi- 

dent through  the  Secretary  of  War,  and  that,  therefore, 
the  Collector  of  Customs  for  the  Archipelago  has  authority 
to  enforce  that  law.” 


116  The  Exclusion  and  Expulsion  of  Aliens. 

In  referring  to  this  decision  in  a later  case37  where  the 
contention  made  by  the  appellee  was  that  the  customs 
officers  in  Manila  had  no  power  to  enforce  the  immigration 
laws  and  that  their  execution  was  by  law  entrusted  to  the 
Secretary  of  Commerce  and  Labor  the  Supreme  Court  of 
the  Philippines  said : “This  same  contention  was  made  In 
re  Allen  and  was  decided  adversely  to  the  claim  of  the  ap- 
pellee in  that  case.  Since  that  decision  Congress  has 
passed  the  Act  of  February  6,  1905, 38  section  6 of  which  is 
as  follows:  ‘That  the  immigration  laws  of  the  United 
States  in  force  in  the  Philippine  Islands  shall  be  admin- 
istered by  the  officers  of  the  general  government  thereof 
designated  by  appropriate  legislation  of  said  government. 

(2. ) Legislation  Regulating  the  Admission  of  Immigrants. 

The  Act  of  Congress  of  February  20,  1907, 39 — the  pres- 
ent immigration  law — which  in  its  thirty-third  section  in- 
cludes within  its  jurisdiction  the  Philippine  Islands,  is 
necessarily  the  only  law  in  force  regulating  the  admission 
and  expulsion  of  aliens  other  than  Chinese.40 

(3.)  Legislation  Regulating  the  Admission  or  Residence 
of  Chinese. 

(a.)  Act  No.  317  of  the  Philippine  Commission.41 

This  act  provides  in  its  first  section  that  no  Chinaman 
who  left  the  Philippine  Island  before  August  13,  1898,  and 
who  had  remained  outside  the  Islands  up  to  the  date  of 
the  passage  of  the  act  and  who  would  be  excluded  but  for 
the  orders  heretofore  issued  by  the  military  governor  ex- 
tending the  time  within  which  Chinese  might  be  permitted 

37Ngo  Ti  v.  Shuster,  7 Philippine  Reports,  351. 

3833  Stat.  at  L.,  pt.  1,  p.  692. 

3934  Stat.  at  L.  pt.  1,  p.  898. 

■*oThe  Philippine  Decisions  rendered  on  cases  arising  under  this  law  are 
here  cited  in  connection  with  the  appropriate  sections  of  the  Immigration 
Act,  post,  p.  149. 

^Public  Laws  enacted  by  the  Philippine  Commission,  Vol.  1,  p.  729. 


Power  and  Methods. 


117 


to  return  should  be  permitted  to  enter  the  Islands;  and, 
in  its  second  section,  that  Chinese  who  had  left  the  Islands 
since  August  13,  1898,  or  who  might  leave  in  the  future 
should  be  permitted  to  land  only  upon  the  production  of  a 
certificate  of  the  collector  of  customs  of  the  port  of  the 
Philippine  Islands  whence  they  departed,  issued  at  the 
time  of  their  departure.  The  period  in  which  they  might 
return  was  limited  to  one  and  one-half  years  and  no  ex- 
tension of  the  period  was  to  be  granted  for  illness  or  any 
other  cause  by  any  authority. 

(b.)  Act  No.  702  of  the  Philippine  Commission.42 

This  act  was  passed  for  the  purpose  of  carrying  into 
effect  the  provisions  of  section  four  of  the  Act  of  Congress 
of  April  29,  1902.  It  authorizes  and  directs  the  collector 
of  customs  for  the  Philippine  Archipelago  to  make  the  reg- 
istration of  all  Chinese  laborers  as  prescribed  by  the  Act 
of  April  29,  1902, 44  and  empowers  him  to  make  such  rules 
and  regulations  as  may  be  necessary  for  the  efficient  exe- 
cution of  the  act  and  to  prescribe  the  form  of  certificates  of 
registration  required  thereby.45  It  prescribes  the  form  of 
each  certificate  of  registration  and  the  payment  of  a fee 
of  fifty  cents  to  the  collector  of  customs  on  receipt  of  the 
same  by  the  applicant.46  Any  Chinese  laborer  within  the 
limits  of  the  Philippine  Islands  who  neglects,  fails  or 
refuses  to  obtain  the  certificate  of  registration  within  the 
space  of  one  year  from  the  passage  of  the  act  and  who  is 
thereafter  found  to  be  without  the  certificate  is  made  by 
the  act  subject  to  arrest  and  to  be  brought  before  any  judge 
of  a court  of  first  instance  in  the  Islands ; and  it  is  made 
the  duty  of  such  judge  to  order  the  deportation  of  the 
prisoner  either  to  China  or  the  country  whence  he  came 
“unless  he  shall  affirmatively  establish  clearly  and  to  the 

42Pnblic  Laws  enacted  by  the  Philippine  Commission,  Yol.  2,  p.  363. 

44Section  1. 

4BSection  2. 

4®Section  3. 


118  The  Exclusion  and  Expulsion  of  Aliens. 


satisfaction  of  such  judge  by  at  least  one  credible  witness 
other  than  Chinese,  that  although  lawfully  in  Philippine 
Islands  at  and  ever  since  the  passage  of  this  act  he  has  been 
made  unable  by  reason  of  accident,  sickness  or  other  un- 
avoidable cause  to  procure  the  certificate  within  the  time 
prescribed  by  law,  in  which  case  the  court  shall  order  and 
adjudge  that  he  procure  the  proper  certificate  within  a 
reasonable  time.  Provision  is,  however,  made  that  although 
any  Chinese  laborer  who  has  for  any  reason  failed  to  se- 
cure the  certificate  required  by  law  within  two  years  after 
the  passage  of  the  act  shall  be  subject  to  deportation,  if  it 
appears  that  a certificate  has  in  fact  been  procured  in  due 
time,  but  has  been  lost,  a reasonable  time  will  be  allowed 
for  procuring  a duplicate.  The  right  to  obtain  a duplicate 
certificate  under  the  conditions  cited  is  specially  granted 
by  the  act;  but  no  Chinese  person  theretofore  convicted  in 
any  court  of  the  states  or  territories  of  the  United  States  or 
the  Philippine  Islands  of  a felony  is  permitted  to  register 
without  special  authority  from  the  civil  governor,  now 
the  Governor  General.47 

Section  five  provides  that  every  “Chinese  person”  having 
a right  to  be  and  remain  in  the  Philippine  Islands  shall 
obtain  the  certificate  specified  in  section  three;  and  that 
every  “Chinese  person”  found  without  such  certificate 
within  the  Philippine  Islands  after  the  expiration  of  the 
registration  period  shall  be  presumed  in  the  absence  of  sat- 
isfactory proof  to  the  contrary  to  be  a Chinese  laborer  and 
shall  be  subject  to  deportation.  Section  seven  provides 
that  every  “Chinese  person”  who  may  be  entitled  to  come 
into  the  Philippines  may  upon  request  be  given  a certificate 
containing  data  to  be  prescribed  by  the  Insular  Collector 
of  Customs. 

These  provisions  seem  not  altogether  unworthy  of  com- 
ment. As  before  stated,  this  act  was  passed  by  the  Philip- 
pine Commission  in  the  exercise  of  the  powers  specially 


47  Section  4. 


Power  and  Methods. 


119 


conferred  upon  it  by  section  four  of  the  Act  of  Congress  of 
April  29,  1902,  as  its  title  indicates.  That  section  desig- 
nates one  class  of  Chinese — the  laboring  class — on  the 
members  of  which  it  imposes  the  obligation  of  obtaining  a 
certificate  of  registration  in  the  Philippine  Islands;  and 
the  authority  conferred  upon  the  Commission  would  seem 
to  be  limited  to  providing  methods  whereby  the  registra- 
tion of  the  members  of  the  particular  class  should  be 
brought  about ; and  this  view  would  seem  to  be  supported 
by  the  fact  that  the  Act  of  May  5,  1892,  the  provisions  of 
which  were  kept  in  force  by  the  first  section  of  the  Act  of 
April  29,  1902,  has  invariably  been  construed  by  the  courts 
to  impose  upon  Chinese  laborers  alone  the  obligation  of  ob- 
taining certificates  of  registration.48  The  Philippine  Com- 
mission was  not  authorized  by  Congress  to  create  or  enact 
a law  calling  for  the  registration  of  Chinese  in  the  Philip- 
pine Islands  but  simply  to  “make  all  regulations  and  pro- 
visions necessary  for  the  enforcement”  of  section  four  of 
the  Act  of  1902.  This  being  so,  it  is  difficult  to  account  for 
the  use  of  the  words  “Chinese  person”  in  section  five  of  the 
Philippine  act,  except  on  the  assumption  that  the  phrase 
was  used  in  particular  connection  with  the  provision  of 
that  section  to  the  effect  that  in  the  absence  of  the  pos- 
session of  a certificate  after  the  expiration  of  the  time 
required  by  statute  in  which  it  might  be  obtained,  such 
Chinese  as  could  not  present  a certificate  were  to  presumed 
to  be  laborers — in  other  words  that  the  scrivener  was  un- 
willing to  allude  to  a Chinese  person  as  a laborer  until 
the  happening  of  the  condition  from  which  the  law  in- 
ferred that  he  must  necessarily  be  one.49  Again,  if  all 

48See  post,  pp.  585,  586. 

49In  providing  that  a Chinese  person  found  without  such  certificate  he 
shall  he  deemed  a laborer,  it  may  be  questioned  whether  or  not  the  Philip- 
pine Commission  was  strictly  within  the  authority  with  which  it  was  vested 
by  Congress  to  administer  existing  Chinese  exclusion  laws.  Nowhere  does 
the  Act  of  1892,  as  amended  by  that  of  1893,  provide  that  failure  to  possess 
a certificate  on  the  part  of  a Chinese  person  shall  give  rise  to  the  presumption 
that  he  is  a laborer.  Those  laws  provided  no  more  than  that  a Chinese 


120  The  Exclusion  and  Expulsion  of  Aliens. 

Chinese  persons,  including  those  of  the  exempt  classes, 
were  required  by  law  to  obtain  certificates  of  residence 
under  the  Philippine  statute,  the  absence  of  a certificate  in 
the  hands  of  a person  of  Chinese  nationality  after  the  ex- 
piration of  the  statutory  period  could  not  in  logic  and 
reason  give  rise  to  the  presumption  that  he  was  necessarily 
a member  of  only  one  of  the  various  classes  who  was  under 
the  obligation  of  obtaining  such  certificate;  at  best  it 
could  only  give  rise  to  the  presumption  that  not  having 
obtained  it  he  was  unlawfully  in  the  country.  The  pro- 
vision of  the  section  creating  the  presumption  would  seem 
to  indicate  that  the  members  of  the  Commission  were  well 
aware  that,  at  the  time  of  the  drafting  of  the  act,  two 
things  would  be  necessary  to  justify  deportation  of  a 
Chinese  person  under  this  section : first,  the  absence  of  the 
certificate,  after  the  expiration  of  the  statutory  period; 
second,  that  that  person  belonged  to  the  laboring  class. 

A different  view,  however,  seems  to  have  been  enter- 
tained by  the  Collector  of  Customs.  In  a circular  ad- 
dressed to  collectors  of  customs  and  provincial  treasurers 
of  the  islands,  he  says  :50  “Your  attention  is  called  to  the 
fact  that  while  by  sections  one  and  four  of  Act  No.  702  of 
the  Philippine  Commission,  only  Chinese  ‘laborers’  are 
positively  compelled  to  register,  by  section  five  of  the 
same  act  ‘every  Chinese  person’  is  required  to  obtain  a 
certificate  of  registration  prescribed  by  said  Act  No.  702  as 
evidence  of  his  or  her  right  to  remain  in  these  Islands,  and 
the  failure  to  obtain  such  certificate  subjects  ‘any  Chinese 
person’  to  being  presumed  to  be  a laborer  and  to  deporta- 
tion. As  this  requirement  clearly  makes  it  necessary  for 
all  classes  of  Chinese  persons  who  desire  to  remain  in  these 
Islands  to  obtain  a certificate  of  residence,  it  is  proper  that, 
etc.” 

laborer  without  a certificate  shall  be  deemed  to  be  unlawfully  in  the  United 
States,  unless  he  can  show  in  the  mode  prescribed  by  statute,  that  for  some 
good  reason  he  failed  to  get  one. 

eoChinese  and  immigration  circulars  No.  110,  June  27,  1903. 


Power  and  Methods. 


121 


The  Philippines  Supreme  Court  does  not  seem  to  have 
shared  the  view  taken  by  the  collector.  In  the  case  of  the 
United  States  v.  Sy  Quiat,51  it  was  held  that  a Chinese 
person  who  was  arrested  in  the  Philippine  Islands  without 
the  certificate  was  free  to  prove  if  he  could,  his  mercan- 
tile status  during  the  registration  period;  and  this  de- 
cision was  followed  in  a later  case.52  Again,  in  the  case 
of  the  United  States  v.  Chan  Sam,53  the  following  facts 
appeared : the  appellant  was  charged  with  being  a laborer, 
found  after  the  expiration  of  the  statutory  period  to  be  un- 
provided with  a certificate  of  registration  as  prescribed  by 
Act  702.  It  was  shown  that  he  entered  the  Philippine 
Islands  in  1902  or  1903  without  the  consent  of  the  immi- 
gration officers  and  while  a member  of  the  laboring  class, 
that  he  continued  a member  of  such  class  until  January, 
1907,  having  without  cause  failed  to  procure  or  to  attempt 
to  procure  the  certificate  and  that  he  stayed  in  the  Philip- 
pine Islands  until  arrested  in  September,  1909.  It  was 
admitted  that  prior  to  that  time  he  had  become  a merchant. 
The  court  held  that  the  residence  of  an  unregistered 
Chinese  laborer  in  the  Philippine  Islands  after  the  date 
prescribed  by  law  for  the  issuance  of  registration  certifi- 
cates has  elapsed,  is  unlawful,  and  subjects  him  to  deporta- 
tion, and  that  his  liability  to  deportation  continues  as  the 
result  of  his  unlawful  residence  even  though  he  may  there- 
after cease  to  be  a laborer  in  fact.  Thus  it  is  recognized 
in  these  cases  that  certificates  of  registration  are  not  re- 
quired of  members  of  the  exempt  classes. 

Section  six  is  in  effect  a re-enactment  of  section  eleven 
of  the  Act  of  September  13,  1888, 54  which  penalizes  the 
falsification  of  or  forging,  or  uttering  any  false,  certificate 
of  registration.  The  Supreme  Court  of  the  Philippines  has 
held  that  the  act  of  obtaining  a “section  six”  certificate, 

BiVol.  12,  Philippine  Reports,  p.  676. 

52United  States  v.  Lim  Co,  12  Philippine  Reports  703. 

5317  Philippine  Reports,  p.  448. 

5425  Stat.  at  L.  476;  ante , p.  89. 


122  The  Exclusion  and  Expulsion  of  Aliens. 


issued  in  China,  stating  that  the  person  named  therein 
who  was  in  fact  a Chinese  laborer  was  a merchant,  and 
of  presenting  it  to  the  authorities,  when  the  person  pre- 
senting it  knew  that  the  Chinaman  presenting  it  was  not  a 
merchant,  constitutes  the  uttering  of  a fraudulent  certifi- 
cate in  violation  of  section  eleven  of  the  Act  of  Congress  of 
September  13,  1888,  now  embodied  as  section  six  in  Act 
No.  702  of  the  Philippine  Commission.55 

Section  12  re-enacts  section  two  of  the  Act  of  Congress  of 
November  3,  1893, 56  insofar  as  it  defines  the  terms  “laborer” 
and  “merchants;”  but,  in  stating  the  significance  of  the 
term  “merchant”  “as  employed  in  this  act,”  those  who 
drew  it  up  apparently  lost  sight  of  the  fact  that  except 
when  used  in  connection  with  the  definition  of  its  meaning, 
the  term  merchant  does  not  appear  at  all  in  the  Philippine 
legislation  on  the  subject.  It  has  been  held  that  the  burden 
of  proof  is  on  a Chinese  person  to  prove  his  mercantile 
status  and  to  produce  the  partnership  books  as  evidence  of 
the  fact  that  the  alleged  business  is  conducted  in  his  and 
his  partner’s  name,  and  that  failure  to  produce  such  books 
gives  rise  to  the  presumption  or  justifiable  inference  that 
his  name  does  not  appear  therein  as  a member  of  the  firm ; 
and  that  where  a business  in  a store  is  conducted  in  the 
name  of  the  appellant’s  partner,  and  not  in  his  own  name, 
and  the  license  which  the  law  requires  to  be  taken  out  in 
connection  with  the  conduct  of  the  alleged  business  is  also 
in  the  alleged  partner’s  name,  such  business  is  not  con- 
ducted in  the  appellant’s  name,  and  the  proofs  offered  are 
insufficient  to  show  his  status  as  a merchant  under  this 
section.57  And  a Chinese  person  who  owns  and  conducts 
a pansiteria,  or  “chow  house”  worth  only  $250.00  where 
raw  food  is  cooked  and  served  on  the  premises  is  not  a 
merchant.58 

55United  States  v.  Ballantine,  Yol.  5,  p.  312,  Philippine  Reports. 

5628  Stat.  at  L.  7,  ante,  p.  96. 

57United  States  v.  Sy  Quiat,  12  Philippine  Reports  676. 

ssUnited  States  v.  Lim  Co,  12  Philippine  Reports  703. 


Power  and  Methods. 


123 


Section  15  provides  that  in  view  of  the  impossibility  of 
completing  the  registration  of  Chinese  provided  by  Act  702 
within  one  year  from  the  passage  of  the  Act  of  Congress 
of  April  29,  1902,  the  time  for  such  registration  was  ex- 
tended for  a period  of  six  months  to  date  from  April  29, 
1903.69 


(B.)  The  Hawaiian  Islands. 

The  cession  of  the  Hawaiian  Islands  to  the  United  States 
was  accepted  by  the  resolution  approved  by  the  President, 
July  7,  1898.60  That  resolution  provided  that  there  should 
be  no  further  immigration  of  Chinese  into  the  Hawaiian 
Islands,  except  upon  such  conditions  as  were  at  the  time 
of  its  approval  or  might  thereafter  be  allowed  by  the  laws 
of  the  United  States ; and  that  no  Chinese  by  reason  of  any- 
thing contained  therein  should  be  allowed  to  enter  the 
United  States  from  the  Hawaiian  Islands. 

The  Act  of  Congress  of  April  30,  1900,61  entitled  “An 
act  to  provide  a Government  for  the  Territory  of  Hawaii,” 
provides  in  its  fourth  section  that  all  persons  who  were 
citizens  of  the  republic  of  Hawaii  on  August  12,  1898,  were 
thereby  declared  to  be  citizens  of  the  United  States  and 
citizens  of  the  territory  of  Hawaii. 

Section  101  provides  that  “Chinese  in  the  Hawaiian 
Islands  when  this  act  takes  effect  may  within  one  year 
thereafter  obtain  certificates  of  residence’’  as  provided  by 
the  Act  of  May  5,  1892,  as  amended  by  the  Act  of  No- 
vember 3, 1893,  “and  until  the  expiration  of  said  year  shall 
not  be  deemed  to  be  unlawfully  in  the  United  States  if 
found  therein  without  such  certificate : Provided , however, 
That  no  Chinese  laborer  whether  he  shall  hold  such  certifi- 

soOther  Philippine  decisions  are  cited  in  connection  with  the  appropriate 
sections  of  the  Chinese  exclusion  acts,  and  the  existing  immigration  law, 
post. 

6030  Stat.  at  L.  751. 

6i31  Stat.  at  L.  141-161. 


124  The  Exclusion  and  Expulsion  of  Aliens. 

cate  or  not,  shall  be  allowed  to  enter  any  state,  territory 
or  district  of  the  United  States  from  the  Hawaiian 
Islands.”62 

In  1901  the  opinion  of  the  Attorney  General  of  the 
United  States63  was  requested  upon  the  following  ques- 
tions : 

1.  Whether  a person  born  in  the  Hawaiian  Islands  in 
1885  of  Chinese  parents  who  were  laborers,  and  taken  to 
China  with  his  mother  in  1890,  is  entitled  to  re-enter  the 
territory  of  Hawaii  where  his  father  still  resides? 

2.  Whether  the  wife  and  children  of  a Chinese  person 
who  was  naturalized  in  1887  in  Hawaii  and  still  resides 
there  are  entitled  to  enter  that  territory  “by  virtue  of  the 
citizenship”  of  the  husband  and  father? 

In  his  opinion  the  Attorney  General  calls  attention  to  the 
fact  that  the  power  of  collective  naturalization  has  been 
frequently  exercised  by  the  President  and  the  Senate ; and 
that  the  provision  of  section  4 of  the  organic  act  of  Hawaii 
declaring  that  all  persons  who  were  citizens  of  the  Republic 
of  Hawaii  on  August  12,  1898,  are  declared  to  be  citizens 
of  the  United  States,  is  an  example  of  such  legislation,  and 
that  since  the  constitution  of  the  Republic  of  Hawaii  (sec- 
tion 1,  Article  17 ) provided  that  all  persons  born  or  natu- 
ralized in  the  Hawaiian  Islands  and  subject  to  the  jurisdic- 
tion of  the  republic  are  citizens  thereof,  such  persons,  being 
citizens  of  the  United  States  are  not  subject  to  the  opera- 
tion of  the  immigration  acts.  He  says,  “In  my  opinion  con- 
siderations drawn  from  the  general  Chinese  exclusion 
policy  of  the  United  States  leading  to  the  proposition  that 
this  grant  of  privilege  (of  citizenship)  is  difficult  to  con- 
ceive or  impossible  to  suppose,  may  not  justly  be  invoked 

62A  Chinese  laborer  who  left  the  Hawaiian  Islands  after  annexation  in  Oc- 
tober, 1899,  and  returned  in  July,  1901,  having  failed  to  obtain  a certificate 
of  residence  under  this  section  held  not  entitled  to  come  into  the  territory 
for  the  purpose  of  registering  and  not  being  in  the  Hawaiian  Islands  when 
the  act  took  effect  did  not  come  within  the  statutory  provision.  United 
States  v.  Yong  Ho,  1 U.  S.  D.  Ct.  Hawaii  1. 

6323  Op.  Atty.  Gen.  345,  Jan.  16,  1901. 


Power  and  Methods. 


125 


to  support  a persuasion  that  Congress  did  not  intend 
‘to  admit  to  the  full  rights  of  citizenship  a class  of  Chinese 
persons  in  a distant  land,  who  if  they  had  been  domiciled 
in  our  midst  could  under  no  circumstances  ever  have  be- 
come citizens  of  the  United  States.  Nevertheless,  this  is 
precisely  what  Congress  did.  And  it  must  be  observed  on 
the  suggestion  just  quoted  that  while  such  Chinese  per- 
sons being  born  in  China  would  not  have  been  entitled 
to  naturalization  in  this  country,  on  the  other  hand,  if  born 
in  the  United  States  under  a parental  status,  as  defined  in 
the  Wong  Kim  Ark  case,64  they  would  have  been  citizens  of 
the  United  States  by  J)irth  through  the  force  of  that  de- 
cision.” And  in  a subsequent  opinion66  the  Attorney  Gen- 
eral again  held  that  “any  Chinese  person  who  was  in  fact 
a citizen  of  the  Kepublic  of  Hawaii  under  its  constitution 
and  laws  on  August  12,  1898,  and  who  has  not  since  that 
date  voluntarily  abandoned  his  citizenship  or  legally  been 
deprived  thereof,  is  a citizen  of  the  United  States.” 

This  view  has  apparently  received  the  sanction  of  the 
Department  of  State.  In  a communication  forwarded  by 
the  United  States  Consul  General  at  Shanghai  to  the  Amer- 
ican Minister  at  Pekin  it  appeared  that  a resident  of  Can- 
ton, China,  applied  at  the  consulate  at  that  city  for  regis- 
tration as  an  American  citizen ; that  he  had  been  a resident 
of  the  Hawaiian  Islands  for  seventeen  years  before  Hawaii 
was  annexed  to  the  United  States,  and  that  his  papers 
showed  that  he  was  a naturalized  Hawaiian  subject;  but  he 
left  Hawaii  in  1897  for  Canton,  where  immediately  after 
his  arrival  he  engaged  in  business  as  a merchant.  The 
Consul  General  was  informed  by  Mr.  Conger,  the  American 
Minister,  that  by  virtue  of  section  4 of  the  Act  of  April  30, 
1900,  the  subject  of  the  correspondence  was  a citizen  of 
the  United  States  unless  he  had  renounced  his  citizenship ; 
and  while  reminding  the  Consul  General  that  an  American 
citizen  might  acquire  a civil  or  commercial  domicile  in  a 

^United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  42  Law  Ed.  890. 

6523  Op.  Atty.  Gen.  352,  1901. 


126  The  Exclusion  and  Expulsion  of  Aliens. 

foreign  country  without  expatriation  the  registration  of 
the  applicant  should  be  granted  only  after  a careful  cor- 
roboration of  facts  tending  to  show  that  he  had  not  re- 
nounced his  citizenship.  This  instruction  was  approved 
by  Mr.  Hay,  Secretary  of  State.66 

The  United  States  District  Court  for  the  Territory  of 
Hawaii  is  in  accord  with  the  views  above  expressed,  hold- 
ing that  the  fact  that  a person  was  born  in  Hawaii  when 
it  was  known  as  the  Kingdom  of  Hawaii  did  not  change 
the  result;67  but  the  same  court  has  held  that  section  4 
does  not  vest  with  American  citizenship  non-resident 
minor  children  of  a naturalized  Hawaiian  citizen.68 

(C.)  Porto  Rico. 

By  Article  II  of  the  treaty  of  Paris,69  proclaimed  April 
11,  1899,  Spain  ceded  to  the  United  States  the  Island  of 
Porto  Rico  and  other  islands  then  under  the  Spanish  sov- 
ereignty in  the  West  Indies.  It  was  agreed  in  Article  IX 
that  Spanish  subjects,  natives  of  the  peninsula,  residing  in 
the  territory  over  which  Spain  relinquished  her  sover- 
eignty, might  remain  in  or  remove  therefrom ; and  in  case 
they  remained  in  the  territory  they  might  preserve  their 
allegiance  to  the  Spanish  crown  by  making,  before  a court 
of  record,  within  a year  from  the  date  of  the  exchange  of 
ratifications  of  this  treaty,  a declaration  of  their  decision  to 
preserve  such  allegiance;  in  default  of  which  declaration, 
they  were  to  be  held  as  having  renounced  it  and  as  having 
adopted  the  nationality  of  that  territory.  The  civil  rights 
and  political  status  of  the  native  inhabitants  of  the  terri- 

66Foreign  Relations  of  the  United  States,  130-132,  1901. 

67United  States  v.  Ching  Tai  Sai;  United  States  Ching  Tai  Sun,  Yol.  1, 
United  States  District  Court  of  Hawaii  118. 

68 in  re  Koon  Ko  and  Koon  Keen,  Yol.  3,  United  States  District  Court  of 
Hawaii  623.  Other  Hawaiian  cases  are  cited  in  connection  with  the  appro- 
priate section  of  the  Chinese  exclusion  acts,  and  the  existing  immigration 
law. 

6930  Stat.  at  L.  1754. 


Power  and  Methods. 


127 


tories  thereby  ceded  to  the  United  States  was  to  be  deter- 
mined by  Congress. 

By  the  cession  of  Porto  Rico  the  allegiance  of  the  in- 
habitants thereof — with  the  exception  of  those  who  might 
avail  themselves  of  the  opportunity  afforded  to  retain 
their  Spanish  allegiance — became  due  to  the  United  States, 
which  was  in  possession,  and  had  assumed  the  government 
of  the  country.  Thus,  the  nationality  of  the  island  became 
American  instead  of  Spanish. 

On  April  12,  1900,  Congress  passed  an  act  creating  a 
civil  government  for  Porto  Rico.  Courts  were  provided 
for  and  among  other  things  Porto  Rico  was  made  a judi- 
cial district.  The  court  was  to  be  designated  the  District 
Court  of  the  United  States  for  Porto  Rico.  Section  7 of 
the  act  provided  that  all  inhabitants  continuing  to  reside 
therein  who  were  Spanish  subjects  on  the  11th  day  of 
April,  1899,  and  then  resided  in  Porto  Rico,  and  their 
children  born  subsequent  thereto  were  to  be  deemed  and 
to  be  held  to  be  citizens  of  Porto  Rico,  and  as  such  entitled 
to  the  protection  of  the  United  States,  except  such  as 
should  have  elected  to  preserve  their  allegiance  to  the 
crown  of  Spain  on  or  before  the  11th  day  of  April,  1900, 
in  accordance  with  the  provisions  of  the  treaty  of  peace 
between  the  United  States  and  Spain  entered  into  on  the 
11th  day  of  April,  1899;  and  they,  together  with  such 
citizens  of  the  United  States  as  should  reside  in  Porto  Rico 
should  constitute  a body  politic  under  the  name  of  the 
People  of  Porto  Rico. 

The  Act  of  April  29,  1902,  which  made  the  Chinese 
exclusion  laws  applicable  to  the  island  territory  under  the 
jurisdiction  of  the  United  States,  prohibited  the  immigra- 
tion of  Chinese  laborers  to  Porto  Rico  as  well  as  that  of 
Chinese  of  the  exempt  classes  except  as  prescribed  by  the 
Chinese  exclusion  acts,  and  further  forbade  the  immigra- 
tion of  Chinese  not  citizens  of  the  United  States  from 
Porto  Rico  to  the  mainland  territory  of  the  United  States. 
The  present  immigration  law  in  its  thirty-third  section 


128  The  Exclusion  and  Expulsion  of  Aliens. 


provides  for  the  enforcement  of  its  provision,  as  did  its 
predecessor,  the  Act  of  March  3,  1903,  in  all  waters,  terri- 
tory and  other  place  subject  to  the  jurisdiction  of  the 
United  States  except  the  Isthmian  Canal  Zone.  The  im- 
migration law  is,  then,  in  force  in  Porto  Rico  just  as  it  is 
in  the  Philippines  and  Hawaii.  But  although  the  Act  of 
April  12,  1900,  in  designating  the  political  status  of  such 
of  the  residents  of  the  Island  of  Porto  Rico  who  did  not 
elect  to  retain  their  Spanish  allegiance,  did  not  confer  on 
them  United  States  citizenship,  they  are  not,  nevertheless, 
to  be  considered  as  aliens  for  the  purposes  of  the  immigra- 
tion law.70 

4.  Constitutional  Power  of  Congress  to  Exclude  or  Expel. 

(A.)  In  General. 

As  Congress  is  visited  with  exclusive  power  to  regulate 
the  conditions  under  which  aliens  may  enter  or  remain 
in  the  United  States,  its  enactments  restrict  the  applica- 
tion, to  the  extent  of  their  provisions,  of  the  general  in- 
ternational principle  that  all  aliens  admitted  into  a coun- 
try enjoy  the  same  civil  rights  and  are  on  the  same  footing 
as  the  citizens  thereof;  provided,  however,  that  such  pro- 
visions are  not  violative  of  such  guarantees  contained  in 
the  Federal  Constitution  as  are  applicable  to  aliens  sub- 
ject either  to  exclusion  or  expulsion.  The  exclusion  or 
expulsion  of  aliens  having  been  made  the  subject  of  regu- 
lation by  the  municipal  laws  of  the  country,  the  interna- 
tional principle  is  to  that  extent  superseded,  and  their 
validity  can  only  be  brought  into  question  on  the  ground 
that  they  violate  basic  principles  of  the  fundamental  law. 

In  the  great  case  of  United  States  v.  Wong  Kim  Ark71 
the  question  presented  was  whether  or  not  the  Chinese  ex- 
clusion acts  could  operate  to  exclude  from  entry  the  son 

7oGonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317 ; and  see  24  Op. 
Atty.  Gen.  40,  1902.  The  Porto  Eiean  decisions  are  cited  in  connection  with 
the  appropriate  section  of  the  immigration  act. 

71169  U.  S.  649,  42  Law  Ed.  890. 


Power  and  Methods. 


129 


born  to  Chinese  parents  during  their  residence  in  this 
country.  The  court  held  that  as  to  him  the  provisions  of 
the  act  were  wholly  without  effect,  and  in  the  course  of 
its  opinion,  after  discussing  the  clause  of  the  fourteenth 
amendment  of  the  Constitution  providing  that  all  persons 
born  or  naturalized  in  the  United  States  and  subject  to 
the  jurisdiction  thereof  are  citizens  of  the  United  States 
and  of  the  state  wherein  they  reside,  expressed  itself  as 
follows : “The  acts  of  Congress  known  as  the  Chinese  ex- 
clusion acts,  the  earliest  of  which  was  passed  some  four- 
teen years  after  the  adoption  of  the  constitutional  amend- 
ment, cannot  control  its  meaning  or  impair  its  effect,  but 
must  be  construed  and  executed  in  subordination  to  its 
provisions.”  And  later,  “Congress  having  no  power  to 
abridge  the  rights  conferred  by  the  Constitution  upon 
those  who  have  become  naturalized  citizens  by  virtue  of 
acts  of  Congress,  a fortiori  no  act  or  omission  of  Congress, 
as  to  the  providing  for  the  naturalization  of  parents  or 
children  of  a particular  race,  can  affect  citizenship  ac- 
quired as  a birthright,  by  virtue  of  the  Constitution  itself, 
without  any  aid  of  legislation.  The  fourteenth  amend- 
ment, while  it  leaves  the  power  where  it  was  before,  in 
Congress,  to  regulate  naturalization,  has  conferred  no  au- 
thority upon  Congress  to  restrict  the  effect  of  birth,  de- 
clared by  the  Constitution  to  constitute  a sufficient  and 
complete  right  to  citizenship.” 

But  while  Congress  has  not  the  power  to  pass  laws  at- 
tributing to  the  concurrence  of  certain  conditions  a politi- 
cal effect  opposed  to  that  which  the  Constitution  has  de- 
clared shall  result  therefrom,  as  in  the  case  of  persons 
born  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  the  only  measure  of  the  rights  to  be  enjoyed  by 
aliens  subject  to  that  jurisdiction  consists — for  the  pur- 
poses of  the  subject  under  discussion — in  Congressional 
enactments  which  do  not  violate  the  Federal  Constitution. 


72214  U.  S.  320,  53  Law  Ed.  1013. 


130  The  Exclusion  and  Expulsion  of  Aliens. 

“As  the  authority  of  Congress,”  says  the  court  in  the 
Oceanic  Navigation  case,72  “over  the  right  to  bring  aliens 
into  the  United  States  embraces  every  conceivable  aspect 
of  that  subject,  it  must  follow  that,  if  Congress  has  deemed 
it  necessary  to  impose  particular  restrictions  on  the  com- 
ing in  of  aliens  and  to  sanction  such  provisions  by  penal- 
ties enforceable  by  administrative  authority,  it  follows 
that  the  constitutional  right  of  Congress  to  enact  such 
legislation  is  the  sole  measure  by  which  its  validity  has  to 
be  determined  by  the  courts.” 

Right  of  Aliens  to  Invoke  Constitutional  Guarantees . 

Since  Congress  is  vested  under  the  Constitution  with  the 
power  to  legislate  with  regard  to  the  subject  of  the  exclu- 
sion or  admission  of  aliens,  the  only  question  which  can  be 
raised  by  the  foreigner  held  for  deportation  is  whether  the 
act  under  authority  of  which  his  deportation  is  to  be  ac- 
complished violates  any  of  the  provisions  of  the  Constitu- 
tion applicable  to  his  case.  In  order  to  prove  his  right 
under  the  laws  of  the  United  States  he  must  show  one  or 
both  of  two  things : first,  that  in  being  forced  to  submit  to 
the  methods  authorized  by  the  act  itself  he  is  deprived  of 
rights  to  which,  in  his  capacity  as  an  alien  about  to  be  ex- 
pelled or  excluded  from  this  country,  he  is  entitled  under 
the  constitution ; second,  that  the  methods  employed  by  the 
executive  officer  are  not  authorized  by  the  provisions  of 
the  act. 

Keference  to  the  remedies  available  to  the  alien  in  his 
capacity  as  the  subject  of  deportation  proceedings  is  made 
advisedly,  since  his  situation  as  such  is  essentially  differ- 
ent, from  the  point  of  view  of  remedy,  from  that  of  the 
foreigner  residing  in  this  country  who  seeks  to  enforce 
rights  the  protection  of  which  is  guaranteed  by  recourse 
to  judicial  or  other  proceedings.  Aliens  as  well  as  citizens 
residing  in  the  United  States  are  entitled  to  all  the  safe- 


Power  and  Methods. 


131 


guards  of  the  Constitution  with  regard  to  their  rights 
of  person  and  property,  and  are  subject  to  every  criminal 
and  civil  responsibility  as  long  as  they  are  within  this 
country  and  subject  to  its  jurisdiction.73  Merely  because 
a person  within  the  jurisdiction  of  the  United  States  is  an 
alien,  and,  therefore,  one  of  a class  the  members  of  which, 
under  both  international  law  and  the  Constitution,  the 
state  may  expel  at  its  pleasure,  affords  no  justification  for 
legislation  which  would  result  in  depriving  him  of  life,  lib- 
erty or  property  without  due  process  of  law,  or  in  denying 
him  the  right  of  a jury  trial  under  conditions  which  the 
constitutional  provision  was  intended  to  cover;  nor,  on 
that  account,  would  there  be  any  justification  in  disre- 
garding in  the  particular  case  that  principle  of  right  and 
justice,  universally  accepted  in  this  country,  which 
throws  the  burden  of  proof  in  criminal  cases  on 
the  state.  The  reasons  why  these  provisions  do 
not  apply  in  the  case  of  aliens  denied  the  right  to  enter  into 
or  remain  in  the  United  States  have  already  been  stated; 
and  it  seems  plain,  particularly  in  view  of  the  fact  that 
the  ground  for  deporting  aliens  who  have  already  obtained 
admission  is  that  they  have  been  found  to  be  unlawfully 
in  this  country  against  the  specific  prohibitions  of  its  laws, 
that  neither  the  constitutional  guarantee  against  the  in- 
fliction of  unusual  punishments,  nor  that  which  grants  the 
right  to  a trial  by  jury  was  intended  by  the  framers  of  the 
Constitution  to  apply  to  proceedings  which  are  not  insti- 
tuted for  the  punishment  of  crime,  and  which  do  not  even 
constitute  a “cause”  within  the  meaning  of  the  revised 
statutes  of  the  United  States. 

Unlawful  Entry  or  Presence  of  Alien  Not  Punishable  Ad- 
ministratively as  a Crime . 

While  it  is  doubtless  within  the  power  of  Congress  to 

?3Yick  Wo  v.  Hopkins,  118  U.  S.  356,  30  Law  Ed.  220;  Fong  Yue  Ting  v. 
United  States,  149  U.  S.  698,  37  Law  Ed.  905. 


132  The  Exclusion  and  Expulsion  of  Aliens. 

provide  that  the  act  of  entering  or  remaining  in  this  coun- 
try in  violation  of  the  laws  on  exclusion  or  expulsion  shall 
constitute  a crime  or  misdemeanor,  any  attempt  on  the  part 
of  Congress  to  impose  upon  an  alien  a penalty  constituting 
an  infamous  punishment  as  the  result  of  findings  reached 
in  purely  administrative  proceedings  would  be  in  contra- 
vention of  that  provision  of  Article  V of  the  Constitution 
which  alleges  that  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime  unless  on  a present- 
ment or  an  indictment  of  the  grand  jury,  and  that  no  per- 
son shall  be  compelled  in  any  criminal  case  to  be  a witness 
against  himself. 

The  Act  of  May  5,  1892,  provided  that  Chinese  persons 
and  persons  of  Chinese  descent  “convicted  and  adjudged  to 
be  not  lawfully  in  the  United  States”  should  be  imprisoned 
at  hard  labor  for  a period  not  exceeding  one  year,  and 
thereafter  removed  from  the  United  States.  In  passing 
upon  the  constitutionality  of  this  provision  the  Supreme 
Court  held,  in  the  case  of  Wong  Wing  v.  United  States,74 
that  it  was  within  the  power  of  Congress  to  deport  aliens 
and  commit  the  enforcement  of  the  law  to  executive  of- 
ficers. “But  when  Congress  sees  fit  to  further  promote 
such  a policy  by  subjecting  the  persons  of  such  aliens  to 
infamous  punishment  and  hard  labor,  or  by  confiscating 
their  property,  we  think  such  legislation  to  be  valid,  must 
provide  for  a judicial  trial  to  establish  the  guilt  of  the  ac- 
cused.” 

Imposition  of  Administrative  Fine  Not  a Punishment  for 
Crime . 

This  decision  was  relied  on  by  the  plaintiff  in  error  in  the 
case  of  Oceanic  Steam  Navigation  Company  v.  Strana- 
han,76  where  it  was  contended  that  section  nine  of  the  Act 
of  March  3,  1903,  authorizing  the  imposition  of  a money 
penalty  by  executive  officers  on  steamship  companies  bring- 

74163  U.  S.  230,  41  Law  Ed.  140. 

75214  U.  S.  320,  53  Law  Ed.  1013. 


Power  and  Methods. 


133 


in g diseased  aliens  to  ports  of  the  United  States  was  un- 
constitutional because  it  defined  a criminal  offense  and 
authorized  a purely  administrative  official  to  determine 
whether  the  crime  had  been  committed,  and  if  so,  to  inflict 
punishment.  But  in  answer  to  this  contention  it  was 
pointed  out  by  the  court  that  the  principles  announced  in 
the  Wong  Wing  case — that  the  trial  and  punishment  for  an 
infamous  offense  was  not  an  administrative  function — was 
“wholly  inappropriate  to  this  case  since  on  the  face  of  the 
section  which  authorized  the  Secretary  of  Commerce  and 
Labor  to  impose  the  exaction  which  is  complained  of,  it  is 
apparent  that  it  does  not  purport  to  define  and  punish  an 
infamous  crime,  or,  indeed,  any  criminal  offense  whatso- 
ever.” It  was  further  objected,  however,  that  granting  the 
power  of  Congress  to  impose  penalties  for  the  violation  of 
a statutory  duty  and  to  provide  for  their  enforcement  by 
civil  process  it  did  not  follow  that  the  collection  of  a 
money  penalty  could  be  committed  to  administrative  offi- 
cers without  having  recourse  to  the  courts. 

“But,”  said  the  court,  “the  proposition  magnifies  the 
judicial  to  the  detriment  of  all  other  departments  of  the 
Government,  disregarding  many  previous  adjudications  of 
this  court,  and  ignores  practices  often  manifested  and 
hitherto  deemed  to  be  free  from  any  possible  constitutional 
question.” 

Unlawful  Return  of  Deported  Alien  Made  a Criminal  Of- 
fense by  the  Act  of  March  26, 1910. 

By  section  3 of  the  present  act,  as  amended  by  the  Act  of 
March  26,  1910,  it  is  provided  that  “any  alien  who  shall 
after  he  has  been  debarred  or  deported  in  pursuance  of  the 
provisions  of  this  section  attempt  thereafter  to  return  to  or 
enter  the  United  States  shall  be  deemed  guilty  of  a misde- 
meanor and  shall  be  imprisoned  for  not  more  than  two 
years.”  The  result  of  this  legislation  is  to  create  a new 
crime  for  which  the  accused  must  be  indicted  and  tried 
in  regular  criminal  proceedings,  as  is  done  in  all  other 


134  The  Exclusion  and  Expulsion  of  Aliens. 

criminal  cases,  whether  or  not  based  on  the  violations  of 
the  immigration  laws. 

Deportation  Not  a Punishment  for  Crime. 

The  alien  seeking  admission  into  the  United  States  and 
who  is  denied  the  right  to  enter  on  account  of  being  afflicted 
with  disabilities,  the  existence  of  which  imposes  on  the 
appropriate  officers  the  duty  to  exclude  him  under  the  im- 
migration laws;  the  alien  who,  after  having  obtained  in 
some  way  admission  to  the  United  States  is,  during  the 
statutory  period  within  which  he  may  be  deported  accord- 
ing to  the  provisions  of  the  immigration  act,  arrested  and 
ordered  to  be  deported;  and  the  alien  of  the  Chinese  la- 
boring class  specifically  excluded  by  the  Chinese  exclusion 
laws,  whether  denied  admission  upon  entering  or  being 
found  to  be  unlawfully  therein  and  ordered  deported,  all 
occupy  in  law  a position  sui  generis,  in  that  their  depor- 
tation is  not  inflicted  as  a punishment  for  crime  committed 
by  them  or  indeed  for  any  offense  or  misdemeanor  of  any 
kind.  The  order  of  deportation  “is  but  a method  of  enforc- 
ing the  return  to  his  own  country  of  an  alien  who  has  not 
complied  with  the  conditions  upon  the  performance  of 
which  the  Government  of  the  Nation,  acting  within  its  con- 
stitutional authority  and  through  the  proper  departments, 
has  determined  that  his  continuing  to  reside  here  shall  de- 
pend.”76 

Inapplicability  of  Constitutional  Guarantees  to  the  Sub- 
jects of  Deportation  Proceedings. 

In  the  case  just  cited,  the  Supreme  Court  affirmed  the 
constitutionality  of  the  Chinese  exclusion  Act  of  May  6, 
1892,  and  under  it  directed  the  deportation  of  a Chinese 
laborer  who  was  arrested  without  process,  was  heard  be- 
fore a United  States  judge  without  a jury  on  the  question 
of  his  right  to  remain  in  the  United  States,  and,  on  failure 
to  prove  that  right  in  the  manner  prescribed  by  statute, 

TfiFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 


Power  and  Methods. 


135 


was  ordered  deported  by  the  district  judge.  The  effect 
of  this  decision  was  to  settle  conclusively  that  the  constitu- 
tional guarantee  of  the  right  to  a jury  trial  did  not  apply 
to  a judicial  hearing  to  determine  the  right  of  an  alien  to 
remain  in  the  United  States,  that  deportation  under  such 
conditions  was  not  a punishment,  and  that,  therefore,  the 
constitutional  provision  against  cruel  and  unusual  pun- 
ishments did  not  apply ; and  finally,  that  the  principle  that 
the  burden  of  proof  lies  with  the  state  in  criminal  cases 
does  not  apply  to  deportation  proceedings,  as  they  do  not 
constitute  a trial  and  do  not  contain  room  for  a finding 
involving  a criminal  charge. 

If  these  guarantees  cannot  be  invoked  by  aliens  resident 
in  the  United  States  arrested  in  deportation  proceedings 
it  follows,  a fortiori , that  the  alien  stopped  at  the  border 
and  detained  in  his  attempt  to  enter  this  country  has  still 
less  reason  to  attempt  to  rely  upon  them.  In  the  case  of 
Turner  v.  Williams,  in  which  an  alien  attempting  to  enter 
che  United  States  was  detained  and  held  for  deportation 
under  the  Act  of  March  3,  1903, 77  it  was  held  that  the  con- 
stitutional privilege  guaranteeing  the  freedom  of  speech, 
worship  or  petition  had  no  application  to  those  who,  far 
from  being  recognized  residents  of  the  United  States,  with 
a claim  on  the  protection  of  this  country,  and  owing  in  re- 
turn therefor  a temporary  allegiance,  were  stopped  at  it« 
borders  for  the  reason  that  they  belonged  to  a class  to 
whom  this  country  by  specific  legislation  refused  to  extend 
its  protection,  and  whose  allegiance  it  did  not  choose  to  ac- 
cept. 

(B.)  Power  of  Congress  to  Vest  Final  Determination  of 
Right  of  Aliens  to  Enter  or  Remain  in  Executive  Of- 
ficers. 

(1.)  Of  the  Right  to  Enter  or  Remain  for  Residential 
Purposes. 


TiAnte,  p.  78. 


136  The  Exclusion  and  Expulsion  of  Aliens. 


The  power  of  Congress  not  only  to  exclude  or  expel 
aliens  from  the  country  or  to  permit  them  to  enter  only  on 
the  conditions  which  it  prescribes,  but  to  vest  the  final 
determination  in  executive  officers  of  the  right  of  any 
alien  to  enter,  has  been  asserted  and  sustained  for  the  past 
twenty  years  by  the  highest  tribunal  of  the  land. 

The  existence  of  this  power  was  at  first  vigorously  at- 
tacked; it  was  contended  that  to  detain  an  alien  under 
these  conditions  and  to  hold  him  for  deportation  was  to 
deprive  him  of  his  liberty  without  due  process  of  law.  But 
this  view  has  not  been  accepted  by  the  courts.  “Congress 
may,”  said  Mr.  Justice  Gray,  speaking  for  the  Supreme 
Court  in  the  case  of  Ekiu  v.  United  States,78  “ au- 

thorize the  courts  to  investigate  and  ascertain  the  facts  on 
which  the  right  to  land  depends.  But,  on  the  other  hand, 
the  final  determination  of  those  facts  may  be  entrusted  by 
Congress  to  executive  officers ; and  in  such  a case,  as  in  all 
others,  in  which  a statute  gives  a discretionary  power  to 
an  officer,  to  be  exercised  by  him  upon  his  own  opinion  of 
certain  facts,  he  is  made  the  sole  and  exclusive  judge  of  the 
existence  of  those  facts,  and  no  other  tribunal,  unless  ex- 
pressly authorized  by  law  to  do  so,  is  at  liberty  to  re- 
examine or  controvert  the  sufficiency  of  the  evidence  on 

which  he  acted It  is  not  within  the  province  of  the 

judiciary  to  order  that  foreigners  who  have  never  been 
naturalized  nor  acquired  any  domicile  or  residence  within 
the  United  States,  nor  even  been  admitted  into  the  country 
pursuant  to  law,  shall  be  permitted  to  enter,  in  opposition 
to  the  constitutional  and  lawful  measures  of  the  legislative 
and  executive  branches  of  the  National  Government.  As 
to  such  persons  the  decisions  of  executive  or  administrative 
officers  acting  within  powers  expressly  conferred  by  Con- 
gress, are  due  process  of  law.” 

The  facts  presented  in  the  above  case  involved  the  deten- 
tion for  deportation  of  an  alien  stopped  at  the  border  on  a 
finding  by  the  immigration  inspector  that  she  was  likely 
78142  U.  S.  651,  35  Law  Ed.  1146. 


Power  and  Methods. 


137 


to  become  a public  charge,  and  was  as  such  not  entitled  to 
enter  under  the  Act  of  March  3,  1891.  The  case  of  Fong 
Yue  Ting  v.  United  States,79  decided  in  1893,  two  years 
later,  involved  the  right  of  the  government  to  deport 
Chinese  laborers  already  in  this  country  who  had  failed  to 
procure  the  registration  certificate  prescribed  by  the  Act 
of  May  5,  1892.  There  the  court  reaffirmed  the  power  of 
Congress  to  expel  or  exclude  from  the  country  aliens  or 
any  specified  class  of  aliens,  and  held  that  the  power  might 
be  exercised  entirely  through  executive  officers.80  Finally, 
in  the  case  of  Lem  Moon  Sing  v.  United  States,81  the  court 
held  that  the  authority  of  Congress  to  pass  the  Act  of  1894, 
which  made  the  decision  of  executive  officers  denying  a 
Chinese  person  admission  irrespective  of  whether  or  not 
he  might  be  entitled  to  enter  under  existing  treaties  with 
China,  conclusive  and  binding  on  the  courts,  could  not  be 
denied. 

V 

(2).  Of  the  Right  to  Regulate  the  Admission  of  Aliens 
for  Purposes  of  Transit. 

The  power  of  Congress  to  determine  the  conditions  under 
which  aliens  may  enter  the  country  or  to  confer  upon  execu- 
tive officers  the  power  to  provide  regulations  governing 
their  admission  or  exclusion  for  the  purpose  of  carrying 
into  effect  the  provisions  of  the  acts  relative  thereto  is  not 
restricted  to  cases  where  admission  is  sought  for  the 
purpose  of  establishing  domicile.  It  is  the  fact  of  physical 
entrance  by  the  alien  within  the  jurisdiction,  irrespective 
cf  whether  that  purpose  is  for  domicile  or  transit  which  is 
within  the  power  of  Congress  to  grant,  deny  or  regulate. 

“The  doctrine  is  firmly  established,”  says  the  court  in  the 
case  of  Fok  Young  Yo  v.  United  States,82  “that  the  power 
to  exclude  or  expel  aliens  is  vested  in  the  political  depart- 

79149  U.  S.  698,  37  Law  Ed.  905. 

80pp.  713  and  714,  ibid. 

8H58  U.  S.  538,  39  Law  Ed.  1082. 

82185  U.  S.  296,  46  Law  Ed.  917. 


138  The  Exclusion  and  Expulsion  of  Aliens. 

inents  of  the  Government  to  be  regulated  by  treaty  or  by 
act  of  Congress  and  to  be  executed  by  the  executive  author- 
ity according  to  such  regulations,  except  so  far  as  the  ju- 
dicial department  is  authorized  by  treaty  or  by  statute  or 
is  required  by  the  Constitution  to  intervene.  As  a general 
proposition  this  must  be  true  of  the  privilege  of  tran- 
sit  In  short,  the  privilege  of  transit,  although  it  is 

one  that  should  not  be  withheld  without  good  c&use,  is 
nevertheless  conceded  only  on  such  terms  as  the  particular 
government  prescribes  in  view  of  the  well-being  of  its  own 
people Congressional  action  has  placed  the  final  de- 

termination of  the  right  of  admission  in  executive  officers 
without  judicial  intervention,  and  this  has  been  for  many 
years  the  recognized  and  declared  policy  of  the  country. 
The  regulations  to  prevent  the  abuse  of  the  privilege  of 
transit  have  been  and  are  enacted  to  effectuate  the  same 
policy,  and  recourse  to  the  courts  by  habeas  corpus  to  de- 
termine the  existence  of  such  abuse  appear^  to  us  equally 
inadmissible.” 

(C.)  Necessity  for  a Fair  Hearing.  ** 

But,  although  Congress  has  the  power  to  entrust  the  con- 
sideration of  all  questions  respecting  the  admission  and 
exclusion  of  aliens  to  administrative  officers  and  to  make 
their  word  final  with  regard  to  all  questions  of  fact  on 
which  the  right  to  enter  is  based,  there  are  limits  within 
which  those  officers  must  remain  in  order  to  make  exclu- 
sion of  aliens  by  them  a legal  act  sanctioned  not  only  by 
the  modern  practice  of  civilized  nations  but  by  the  funda- 
mental principles  on  which  the  national  Constitution  is 
based.  Under  our  system  of  government  and  jurispru- 
dence there  is  no  room  for  arbitrary  action.  In  the  Japan- 
ese Immigrant  case,83  the  court  expressed  itself  as  follows : 
“This  court  has  never  held,  nor  must  we  now  be  understood 
as  holding  that  administrative  officers  when  executing  the 
provisions  of  the  statute  involving  the  liberty  of  persons, 
83189  U.  S.  86,  47  Law  Ed.  721. 


Power  and  Methods. 


139 


may  disregard  the  fundamental  principles  that  inhere  in 
due  process  of  law  as  understood  at  the  time  of  the  adop- 
tion of  the  Constitution.  One  of  these  principles  is  that 
no  person  shall  be  deprived  of  his  liberty  without  oppor- 
tunity at  some  time  to  be  heard  before  such  officers  in  re- 
spect to  the  matters  upon  which  that  liberty  depends — 
not  necessarily  an  opportunity  upon  a regular  set  occasion 
and  according  to  the  forms  of  judicial  procedure,  but  one 
that  will  secure  the  prompt  and  vigorous  action  contem- 
plated by  Congress  and  at  the  same  time  be  appropriate  to 
the  nature  of  the  case  upon  which  such  officers  are  required 
to  act.  Therefore  it  is  not  competent  for  the  Secretary  of 
the  Treasury  or  any  executive  officer,  at  any  time  within 
the  year  limited  by  the  statute  arbitrarily  to  cause  an  alien 
who  has  entered  the  country  and  who  has  become  subject  in 
all  respects  to  its  jurisdiction  and  a part  of  its  population 
although  alleged  to  be  illegally  here,  to  be  taken  into  cus- 
tody and  deported  without  giving  him  an  opportunity  to  be 
heard  upon  the  questions  involving  his  right  to  be  and  re- 
main in  the  United  States.  No  such  arbitrary  power  can 
exist  where  the  principles  involved  in  due  process  of  law 
are  recognized.” 

The  principles  above  set  forth  were  applied  in  the  cases 
cited  to  the  situation  where  the  question  raised  was  that  of 
the  right  of  the  alien  to  remain  in  the  country.  They  are 
equally  applicable  to  aliens,  who,  not  having  been  admitted 
to  the  United  States  are  detained  for  deportation  by  execu- 
tive officers.  It  is  true  that  in  the  case  cited  the  court,  in 
another  portion  of  the  decision,  uses  language  which  seems 
to  indicate  some  doubt  as  to  whether  or  not  an  alien  who 
has  never  entered  the  United  States  has  the  right  to  invoke 
the  guarantee  of  due  process  of  law  contained  in  the  fifth 
amendment  to  the  Constitution.  It  is  also  true  that  in  such 
a case,  the  position  of  the  alien  for  certain  purposes  is  as 
if  he  had  never  entered  the  country ; and  it  was  stated  in 
the  case  of  Turner  v.  Williams,84  that  an  alien  stopped  at 
84194  U.  S.  279,  48  Law  Ed.  979. 


140  The  Exclusion  and  Expulsion  of  Aliens. 

the  border  and  detained  there  by  immigration  officers  does 
not  become  thereby  one  of  the  persons  to  whom  certain 
constitutional  guarantees  apply.  But  it  is  to  be  noted  that 
this  language  was  used  with  specific  reference  to  the  ca- 
pacity of  the  alien  so  situated  to  invoke  certain  specific 
guarantees  in  his  behalf,  namely,  that  of  the  freedom  of 
speech,  worship  and  petition.  In  the  case  of  Chin  Yow 
v.  United  States,85  the  facts  presented  were  those  of  a 
Chinese  person  who,  on  seeking  to  enter  the  United  States, 
was  refused  admission  by  executive  officer's,  and  was 
further  prevented  by  them,  as  stated  in  the  petition  filed 
by  him,  requesting  the  issuance  of  a writ  of  habeas  corpus, 
from  obtaining  and  presenting  evidence  whereby  his  right 
to  enter  might  have  been  shown.  The  Supreme  Court 
held  that  the  writ,  which  was  denied  by  the  district  court, 
should  have  been  granted  on  the  facts  alleged  in  the  peti- 
tion. It  was  set  out  therein  that  the  petitioner  had  been 
denied  the  opportunity  of  presenting  his  proof;  in  other 
words,  that  he  had  been  denied  a fair  hearing.  This  was 
not  denied  by  the  government.  The  result  of  this  decision 
would  seem  to  be  that  the  language  used  by  the  Supreme 
Court  in  the  Japanese  Immigrant  case,  (Yamataya  v. 
Fisher),86  is  applicable  to  all  aliens,  irrespective  of  whether 
the  administrative  proceedings  raise  the  question  of  their 
right  to  enter  or  to  remain  in  this  country.  The  Act  of 
Congress  under  which  the  executive  officers  proceeded  was 
constitutional,  and  the  mode  of  procedure  prescribed  un- 
questionably constituted  due  process  of  law;  but  the  arbi- 
trary refusal  on  the  part  of  the  officers  to  permit  the  peti- 
tioner to  present  what  proofs  he  had,  or  which  might  be 
within  his  reach,  followed  by  his  detention  for  deportation, 
was  such  as  was  never  contemplated  by  Congress,  and 
plainly  beyond  the  limits  of  departmental  authority.  It 
follows  that  if  the  employment  of  arbitrary  methods  is  in 
itself  sufficient  to  constitute  a denial  of  due  process  any 

85208  U.  S.  8,  52  Law  Ed.  369. 

86 Ante,  p.  138. 


Power  and  Methods. 


141 


act  of  Congress  which  should  prescribe  methods  in  them- 
selves arbitrary  would  come  equally  within  the  constitu- 
tional prohibition. 

In  view  of  the  foregoing  decisions  it  may  be  said  to  be 
conclusively  settled  that  the  only  ground  on  which  an  alien 
seeking  admission  into  the  United  States  under  any  law  or 
treaty  is  entitled  to  have  his  right  to  do  so  adjudicated 
by  the  courts  is  (1)  that  the  act  of  Congress  under 
which  he  is  excluded  does  not  provide  that  he  be  given 
a fair  hearing,  or  (2)  that  during  the  proceedings  against 
him  taken  under  the  act  he  has  been  denied  an  opportunity 
to  be  heard;  and  that  this  is  equally  true  with  regard 
to  foreigners  who  have  already  entered  the  country  and 
whose  right  to  remain  is  denied  by  executive  officers.  In 
either  case  the  alien  is  at  liberty  to  invoke  the  protection 
of  the  Federal  Constitution  against  such  an  apparent  dis- 
regard of  the  fundamental  principles  that  inhere  in  due 
process  of  law. 


Statutory  Limitation  of  Evidence  Available  at  Administra- 
tive Hearing  Does  Not  Constitute  the  Denial  of  a Hearing 
as  to  the  Right  Claimed. 


It  seems,  however,  that  the  claim  that  there  has  been  no 
fair  hearing  cannot  be  successfully  rested  on  a showing 
that  the  evidence  taken  by  executive  officers  was  on  certain 
points  only,  where  the  law  itself  limits  the  amount  or  kind 
of  evidence  that  may  be  presented,  or  when  the  existence  of 
a certain  state  of  facts  is  made  by  statute  to  constitute  of 
itself  sufficient  evidence  to  place  responsibility  for  a viola- 
tion of  the  immigration  acts.  The  right  of  Congress  to  pre- 
scribe what  evidence  shall  be  admitted,  or  what  shall  be 
required  in  deportation  proceedings  from  an  alien  seeking 
either  to  enter  or  remain  in  the  United  States,  is  not  open 
to  controversy.  As  instances  of  such  legislation  we  have 
the  provisions  in  the  Act  of  1882,  as  amended  by  that  of 
1884,  and  those  of  the  Act  of  1888  providing  that  the  “sec- 
tion 6”  certificates  issued  to  merchants,  and  the  return 


142  The  Exclusion  and  Expulsion  of  Aliens. 

certificates  issued  to  Chinese  shall  constitute  the  sole  evi- 
dence on  which  the  former  may  enter  or  the  latter  return  to 
the  United  States;  and  besides  these  the  provisions  of  the 
Acts  of  1892  and  1893  whereby  Congress  provided  that  the 
absence  of  the  certificate  of  residence  throws  upon  Chinese 
laborers  in  the  United  States  the  burden  of  proving  that 
their  presence  in  this  country  is  legal,  and  of  proving  it 
by  at  least  one  credible  witness  other  than  Chinese;  or 
again,  the  special  facts  to  be  established  in  order  to  enable 
Chinese  persons  claiming  a prior  mercantile  domicile  in  the 
United  States  to  re-enter  the  country,  as  provided  by  the 
Act  of  November  3,  1893. 

The  Act  of  March  3,  1903,  as  well  as  the  present  act 
in  force  provides  for  the  infliction  of  a penalty  in  the  form 
of  a fine  upon  transportation  companies  bringing  diseased 
aliens  to  ports  in  the  United  States,  if  it  shall  appear  to 
the  satisfaction  of  the  Secretary  of  Commerce  and  Labor 
that  any  alien  thus  brought  was  afflicted  with  such  disease 
at  the  time  of  foreign  embarkation,  and  that  the  existence 
thereof  might  have  been  detected  by  means  of  a competent 
medical  examination  at  the  time.  In  the  case  of  the 
Oceanic  Steam  Navigation  Company  v.  Stranahan,88  it  was 
contended  that  this  provision,  in  connection  with  the  regu- 
lations made  for  its  enforcement  by  the  Secretary  of  Com- 
merce and  Labor,  the  result  of  which  was  in  effect  to  make 
the  finding  of  the  particular  medical  officer  at  the  port  of 
arrival  final  as  to  the  question  whether  the  disease  existed, 
and  could  have  been  detected  at  the  foreign  port  of  em- 
barkation, was  to  deprive  the  steamship  company  of  the 
amount  of  that  fine  without  a hearing.  The  court,  speaking 
through  Mr.  Justice  White,  remarks  that  by  this  section89 
“the  statute  unambiguously  excludes  the  conception  that 
the  steamship  company  was  entitled  to  be  heard  in  the 
sense  of  raising  an  issue  and  tendering  evidence  concern- 
ing the  condition  of  the  alien  immigrant  upon  arrival  at 

88214  U.  S.  320,  53  Law  Ed.  1013. 

89Section  9,  Act  of  February  20,  1907. 


Power  and  Methods. 


14  a 

the  port  of  disembarkation,  as  the  plain  purpose  of  the 
statute  was  to  exclusively  commit  that  subject  to  the  med- 
ical officers  for  which  the  statute  provided.” 

The  right  to  a hearing  can  mean  no  more  and  no  less  than 
the  right  to  be  heard  on  such  matters  as  the  law  provides 
shall  be  presented  to  administrative  officers.  If  the  right 
to  be  heard  can  be  said  to  be  denied  merely  because  the 
right  to  produce  evidence  concerning  certain  points  is  de- 
nied, then  every  Chinese  person  who  has  attempted  to  enter 
the  United  States  without  the  certificate  provided  by  law, 
and  has  been  returned  on  that  ground,  has  been  denied  a 
hearing.  Such  an  interpretation  of  the  term  “hearing” 
denies  the  right  of  Congress  to  prescribe  and  limit  the  evi- 
dence which  shall  be  received  by  judicial  or  executive  offi- 
cers, which  is  manifestly  absurd.  It  seems,  moreover, 
apparent  that  the  decision  rendered  by  the  medical  officer, 
involving  as  it  necessarily  does  a thorough  examination  of 
the  diseased  alien,  constitutes  the  most  complete  kind  of 
a hearing  permitted  by  law,  in  that  it  involves  a full  con- 
sideration by  such  officer  of  the  only  evidence  on  which 
he  is  required  by  law  to  pass  in  order  to  reach  his  final 
determination.  But  in  the  absence  of  such  examination  by 
the  medical  officer,  the  absence  of  a fair  hearing  could  be 
successfully  urged. 

In  sustaining  section  9 the  court  stated  further  that,  as 
Congress  has  the  undoubted  power  to  forbid  altogether  the 
introduction  of  diseased  aliens  and  to  impose  a penalty 
on  the  vessel  actually  bringing  them  in,  “it  must  then  fol- 
low that  the  provision  contained  in  the  statute  is,  of 
course,  valid,  since  it  only  subjects  the  vessel  to  the  exac- 
tion when it  appears  that  the  alien  immigrant  af- 
flicted  is  in  such  a state  of  the  disease  that  it  must 

have ......  been  susceptible  of  discovery  at  the  port 

of  embarkation.” 

While  the  result  of  the  case  was  to  hold  that  Congress 
was  acting  wholly  within  its  powers  in  making  the  result 


144  The  Exclusion  and  Expulsion  of  Aliens. 

of  the  medical  examination  conclusive  for  the  purpose  of 
imposing  the  penalty  in  question,  the  court  was  careful 
to  add  that,  in  reaching  this  conclusion,  it  had  not  consid- 
sidered  the  questions  which  would  arise  for  decision  if  the 
case  presented  an  attempt  to  endow  administrative  officers 
with  the  power  to  enforce  a lawful  exaction  by  methods 
which  were  not  within  the  competency  of  the  administra- 
tive duties,  because  they  required  the  exercise  of  judicial 
authority. 

(D.)  Classes  Generally  Exempted  from  the  Exercise  of 

the  Power. 

The  principle  has  been  more  than  once  affirmed  in  the 
course  of  this  chapter90  that  when  a state  invites  the  citi- 
zens or  subjects  of  other  powers  to  enter  its  dominions, 
such  invitation  contains  an  implied  guarantee  to  equal 
protection  with  regard  to  civil  rights,  as  distinguished 
from  rights  purely  political,  with  those  extended  to  its  own 
citizens  residing  within  its  territory;  but  that  this  prin- 
ciple is  recognized  only  in  connection  with  the  additional 
proviso  that,  the  state  having  the  right  to  limit  or  restrict 
the  conditions  under  which  aliens  may  enter  or  reside 
therein,  the  alien  availing  himself  of  the  opportunity  thus 
offered  cannot  complain  if  he  is  subjected  to  the  operation 
of  such  provisions,  even  though  their  effect  is  to  deprive 
him  or  limit  him  with  respect  to  certain  civil  rights  enjoyed 
by  the  rest  of  the  community.  The  only  limitation  fixed 
by  international  law,  is,  as  has  already  been  pointed  out, 
that  the  municipal  regulations  shall  not  be  of  such  a na- 
ture as  to  violate  the  recognized  principals  governing  the 
conduct  of  civilized  nations.  We  have  seen  that  Congress 
in  the  exercise  of  its  sovereign  right  to  legislate  concern- 
ing aliens,  has  imposed  strict  conditions  upon  the  right  of 
certain  classes  of  aliens  to  enter  and  remain  in  the  United 
States,  and  has  excluded  other  aliens  altogether;  and  that 

MAnte,  pp.  10,  14. 


Power  and  Methods.  145 

the  result  of  the  decisions  of  the  Supreme  Court  of  the 
United  States  and  of  the  lower  Federal  courts  is  to  the 
effect  that  owing  to  the  peculiar  position  occupied  by 
aliens  in  the  course  of  their  subjection  to  deportation  pro- 
ceedings brought  against  them  either  for  the  purpose  of 
exclusion  or  expulsion,  the  courts  will  intervene  on  their 
behalf  only  when  the  provisions  of  the  acts  of  Congress 
sought  to  be  executed  against  Ihem  violate  some  funda- 
mental principle  of  the  Constitution  of  the  United  States, 
or  when  the  acts  of  executive  officers,  committed  under 
color  of  the  exclusion  or  immigration  laws,  deprive  them  of 
some  fundamental  right  to  which,  through  the  mere  fact 
of  their  being  within  the  territorial  limits  of  the  United 
States,  they  are  held  to  be  entitled. 

It  has  been  pointed  out  that  in  the  discussion  of  this 
question  whatever  rights  aliens  can  claim  depend  abso- 
lutely upon  the  provisions  of  the  acts  of  Congress  passed 
with  regard  to  them,  and  the  validity  of  such  acts  depends 
in  turn  on  whether  or  not  they  are  in  accord  with  such  pro- 
visions of  the  Constitution  as  apply  to  aliens  subjected  to 
deportation  proceedings.  But  the  question  has  occasion- 
ally arisen  as  to  whether  or  not  the  immigration  and  ex- 
clusion acts  apply  to  certain  persons  or  classes  of  persons 
seeking  to  enter  the  United  States  or  to  remain  therein; 
and  this  question  once  presented,  is  one  which  goes 
squarely  to  the  jurisdiction  of  the  executive  officer  to  de- 
port; with  the  important  limitation  however,  that  before 
the  question  of  jurisdiction  can  arise  those  officers  must 
have  passed  definitely,  not  on  the  legal  effect  of  the  status 
of  the  alien  presenting  himself  for  admission  but  on  the 
facts  on  which  their  finding  is  based  and  which,  taken  alto- 
gether, may  be  said  to  constitute  the  alien’s  status  under 
the  law.  Of  course,  should  it  develop  that  the  person  seek- 
ing admission  is  found  by  the  administrative  officers  to  be 
a citizen  of  the  United  States  or  to  be  for  some  other  reason 
without  the  operation  of  the  act  in  question,  it  may  be  said 
that,  in  their  capacity  as  officers  to  examine  and  investi- 


146  The  Exclusion  and  Expulsion  of  Aliens. 


gate  the  right  of  aliens  to  enter  the  United  States  they 
never  had  any  jurisdiction  whatever  over  the  applicant. 
At  the  same  time  it  must  be  admitted  that  some  authority 
must  exist  somewhere  for  the  purpose  of  determining 
whether  or  not  a person  presenting  himself  for  admission 
is  subject  to  deportation;  and  the  position  of  executive 
officers  in  such  cases  would  seem  to  be  analogous  to  that 
of  a judge  of  limited  jurisdiction,  who,  when  a person  is 
brought  before  him  charged  with  an  offense,  has  authority 
over  the  person  of  the  accused  for  the  purpose  of  deter- 
mining whether  or  not  the  offense  alleged  in  the  charges 
made  against  him  comes  within  his  jurisdiction. 

The  Act  of  August  18,  1894, 91  provided  that  any  alien 
excluded  from  admission  into  the  United  States  by  the 
proper  executive  officer  under  any  law  or  treaty  of  the 
United  States  should  not  be  allowed  to  appeal  to  the  courts 
from  that  decision.  In  the  case  of  Lem  Moon  Sing,92  de- 
cided after  the  passage  of  that  act,  the  Supreme  Court  held 
that  although  a Chinese  alien  might  have  the  right  to  enter 
the  United  States  under  either  the  Chinese  exclusion  acts 
or  the  treaty  of  the  United  States  with  China,  the  exclud- 
ing decision  of  the  appropriate  executive  officer  was  final 
and  binding  on  the  court,  and  refused  the  applicant’s  peti- 
tion for  the  issuance  of  a writ  of  habeas  corpus  in  his  be- 
half. Granting  that  the  petitioner  was,  as  alleged  in  the 
petition,  a Chinese  merchant,  and  as  such  entitled  to  enter 
the  United  States,  under  both  the  treaty  with  China  and 
the  Chinese  exclusion  acts,  and  granting  further  that  in 
the  exercise  of  this  right  secured  by  treaty  and  by  acts 
of  Congress  he  had  been  permitted  to  enter  the  United 
States  and  acquired  a commercial  domicile  here — granting- 
all  this,  the  fact  remains  that  in  his  absence  Congress 
passed  an  act  which  specifically  included  those  of  his  class 
within  its  provisions;  in  other  words,  this  country  exer- 
cised its  right  of  enacting  municipal  legislation  governing 

9i28  Stat.  at  L.  ante,  p.  390. 

92158  U.  S.  534,  39  Law  Ed.  1082. 


Power  and  Methods. 


147 


the  admission  or  exclusion  of  aliens.  Under  these  condi- 
tions the  petitioner  could  not  be  heard  to  allege  that  he 
had  a right  to  return  in  violation  of  such  legislation. 
This  case  has  been  repeatedly  cited  as  an  authority  for 
holding  that  the  immigration  Acts  of  1903  and  1907  in- 
cluded within  the  scope  of  their  operation  not  only  alien 
immigrants  coming  to  the  United  States  for  the  first  time, 
but  those  who  have  lawfully  acquired  a domicile  in  this 
country,  left  it  temporarily  animo  revertendi  and  again 
returned  to  their  domicile  in  the  United  States.  There  is 
considerable  conflict  of  judicial  opinion  upon  this  point.93 

No  Chinese  person  can  enter  the  United  States  except 
by  virtue  of  the  treaties  with  China  and  of  the  provisions 
of  the  Chinese  exclusion  acts.  There  was  in  that  case 
and  there  could  be,  no  question  but  that  those  acts  and 
treaties  applied  to  the  petitioner.  On  the  other  hand  there 
is  very  grave  doubt  as  to  whether  or  not  the  present  immi- 
gration act  includes  in  its  provisions  foreigners  who  have 
acquired,  maintained  and  continue  to  maintain  a lawful 
domicile  in  this  country.  It  is  sufficient  to  say  that  if  the 
present  act  is  applicable  to  all  aliens  irrespective  of 
whether  or  not  they  have  established  and  maintained  a 
lawful  domicile  here,  the  decision  in  the  Lem  Moon  Sing 
case  is  in  point;  but  if,  on  the  other  hand,  such  aliens  do 
not  come  within  the  operation  of  the  immigration  acts,  the 
case  has  no  application.  It  is  true  that  it  is  authoritative 
on  the  point  that  the  mere  fact  of  the  establishment  by  an 
alien  of  a lawful  domicile  in  this  country  gives  him  no 
more  right  to  remain  here  in  fhe  face  of  an  act  of  Congress 
directly  or  by  necessary  implication  revoking  the  rights 
thus  enjoyed  than  if  he  had  never  acquired  them;  but  it 
does  not  go  to  the  extent  of  holding  that  these  rights  may 
be  lost  in  the  absence  of  municipal  legislation  which  works 
their  revocation. 

The  finality  of  the  excluding  decision  of  the  executive 

ssSee  post,  pp.  435  et  seq. 


148  The  Exclusion  and  Expulsion  of  Aliens. 


officers  is  wholly  dependent  upon  whether  the  alien  thus 
excluded  is  seeking  admission  into  the  United  States 
under  any  law  or  treaty ; and  in  the  case  of  Chinese  persons 
at  least,  this  question  is  decided  by  the  mere  finding  of 
fact  on  the  part  of  the  officer  that  the  applicant  is  in  fact 
of  Chinese  nationality,  simply  because  no  Chinese  person 
can  enter  as  such  except  under  such  law  or  treaty.94  The 
question  of  whether  a person  is  an  alien  is  generally  one  of 
fact  for  the  executive  department;  but  the  question  of 
whether  or  not  a person  is  an  alien  within  the  meaning  of 
the  immigration  acts  is  a question  of  law,95  as  is  the  ques- 
tion whether  all  aliens  come  within  the  operation  of  the 
immigration  acts.96 

But  since  an  examination  of  the  question  as  to  what 
aliens  or  classes  of  aliens  come  within  the  provisions  of  the 
immigration  acts  involves  a consideration  of  their  status 
under  those  laws  rather  than  that  of  the  power  of  Congress 
to  provide  for  their  exclusion  or  expulsion,  the  subject  is 
left  to  a subsequent  chapter.97 

04  Where,  however,  a Chinese  person  is  excluded,  not  because  he  is  seeking 
to  enter  under  any  law  or  treaty  applicable  to  Chinese,  but  merely  because, 
as  an  alien,  he  is  held  to  be  excludable  under  the  immigration  acts,  the  ques- 
tion of  domicile  may  well  be  material.  Of  course  if  the  department  should 
find,  as  a matter  of  fact  that  he  is  not  settled  here  his  claim  to  enter  as  a 
domiciled  alien  must  fall.  Such  was  the  administrative  finding  in  the  Lem 
Moon  Sing  case.  But  if  he  is  found  to  be  domiciled  here  and  is  excluded  on 
the  ground  that  the  immigration  acts  apply  to  all  aliens  irrespective  of 
whether  or  not  they  have  acquired  a domicile  here  the  departmental  action, 
based  as  it  would  then  be  on  a construction  of  law,  might,  it  seems,  be  open 
to  judicial  review. 

9*>Gonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 

96Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 

97Chapter  on  “ Status,”  post,  p.  321. 


The  Existing  Immigration  Law. 


149 


CHAPTER  II. 

THE  EXISTING  IMMIGRATION  LAW. 

The  Act  of  February  20,  1907, 1 as  Amended  by  the  Act  of 
March  26, 1910.2 

The  Act  of  February  20  is  entitled  “An  act  to  regulate 
the  immigration  of  aliens  into  the  United  States/’  and  it 
may  safely  be  said  that  its  primary  purpose  is  to  prevent 
the  unrestricted  immigration  of  any  and  all  aliens  into  the 
country.  Yet  it  does  not  follow  that  its  provisions  apply 
only  to  such  persons  as  leave  their  native  country  for  the 
United  States  for  the  purpose  of  making  the  latter  their 
home.  This  is  made  evident  by  various  provisions  where 
the  ground  of  exclusion  is  so  obviously  based  on  the  per- 
sonal characteristics,  or  moral,  physical  or  mental  defects 
of  the  individual  seeking  admission  into  this  country  that 
there  is  left  no  room  for  argument  or  doubt  as  to  the 
reason  of  his  exclusion ; and  by  the  further  fact  that  other 
provisions  are  operative  on  members  of  certain  classes 
who  have  already  entered  and  have  lawfully  established 
their  residence  here,  and  who,  therefore,  cannot  be  prop- 
erly classified  as  immigrants  when  returning  to  the  United 
States  to  resume  that  residence. 

On  the  other  hand,  it  must  be  borne  in  mind  that  every 
alien  who  comes  to  this  country  is  not  an  immigrant,  and 
that  in  this  connection  the  title  of  the  Act  must  be  held 
to  be  of  some  significance — although  not  of  such  weight  as 
to  give  it  precedence  over  specific  provisions  of  the  act,  or 
over  its  general  intent  and  meaning  construed  in  the  light 
of  its  provisions  as  a whole.  It  follows  that  disabilities 
which  would  operate  to  exclude  foreign  immigrants,  or 
aliens  coming  to  the  United  States  for  the  first  time,  would 
not  seem  to  be  applicable  to  aliens  domiciled  in  this  coun- 
try who  return  from  a trip  abroad,  provided  that  the  latter 

i34  Stat.  at  L.  898. 

236  Stat.  at  L.  263. 


150  The  Exclusion  and  Expulsion  of  Aliens. 

are  not  specifically  prohibited  from  continuing  to  reside 
here,  and  hence  from  returning  after  departure.  The  right 
of  resident  aliens  to  return  to  this  country  after  a tem- 
porary absence  will  be  considered  at  length  in  a subse- 
quent chapter.3 

It  may  be  stated  as  a general  proposition  that  in  so  far 
as  the  provisions  of  the  act  apply  to  aliens  not  excluded, 
but  who  on  the  contrary  have  been  allowed  to  enter  the 
United  States,  these  provisions  must  be  held  to  apply  to  all 
such  aliens,  whether  immigrants  or  otherwise,  except  such 
as  are  excepted  from  their  operation  either  by  the  express 
provisions  of  the  act  itself,  or  by  implication  consonant 
with  the  accepted  maxims  of  statutory  construction. 

The  aliens  subject  to  the  operation  of  the  act  may  be 
generally  classified  as  follows : 

Those  who  are  excluded  absolutely,  because  of  some 
physical,  mental,  or  moral  disability,  which,  under  the 
act,  precludes  their  lawful  entry  into  the  United  States, 
irrespective  of  whether  their  intended  stay  in  this  country 
is  temporary  or  permanent ; 

Those  suffering  from  some  physical  disability  who  may 
nevertheless  be  admitted  conditionally  in  the  discretion  of 
the  Secretary  of  Commerce  and  Labor  on  giving  bond ; 

Those  who,  after  having  been  permitted  to  enter,  shall 
within  three  years  after  the  date  of  such  entry  become 
public  charges  from  causes  which  existed  prior  to  such 
landing,  those  who  shall  within  that  period  have  been 
found  by  the  Secretary  of  Commerce  and  Labor  to  be  un- 
lawfully here,  or  those,  who,  being  within  the  United 
States,  may  at  any  time  after  entry  and  for  certain  speci- 
fied causes  be  deemed  to  be  unlawfully  in  the  United 
States ; 

Aliens  coming  to  the  United  States  other  than  those 
designated  in  the  three  preceding  classes. 

Accredited  officials  of  foreign  governments,  their  suites, 

3 Post,  p.  427,  Chapter  on  “Status. ” 


The  Existing  Immigration  Law. 


151 


families  and  guests  are  not  subject  to  the  provisions  of  the 
act.4 

Section  1.  That  there  shall  be  levied,  collected,  and  paid 
a tax  of  four  dollars  for  every  alien  entering  in  the  United 
States.  The  said  tax  shall  be  paid  to  the  collector  of  cus- 
toms of  the  port  or  customs  district  to  which  said  alien 
shall  come,  or,  if  there  be  no  collector  at  such  port  or  dis- 
trict, then  to  the  collector  nearest  thereto,  by  the  master, 
agent,  owner  or  consignee  of  the  vessel,  transportation  line, 
or  other  conveyance  or  vehicle  bringing  such  alien  to  the 
United  States.  The  money  thus  collected,  together  *with 
all  fines  and  rentals  collected  under  the  laws  regulating 
the  immigration  of  aliens  into  the  United  States,  shall  be 
paid  into  the  Treasury  of  the  United  States,  and  shall 
constitute  a permanent  appropriation  to  be  called  the 
“immigrant  fund,”  to  be  used  under  the  direction  of  the 
Secretary  of  Commerce  and  Labor  to  defray  the  expense 
of  regulating  the  immigration  of  aliens  into  the  United 
States  under  said  laws,  including  the  contract  labor  laws, 
the  cost  of  reports  of  decisions  of  the  Federal  courts,  and 
digest  thereof,  for  the  use  of  the  Commissioner  General  of 
Immigration,  and  the  salaries  and  expenses  of  all  officers, 
clerks  and  employees  appointed  to  enforce  said  laws.  The 
tax  imposed  by  this  section  shall  be  a lien  upon  the  vessel, 
or  other  vehicle  of  carriage  or  transportation  bringing  such 
aliens  to  the  United  States,  and  shall  be  a debt  in  favor  of 
the  United  States  against  the  owner  or  owners  of  such 
vessel,  or  other  vehicle,  and  the  payment  of  such  tax 
may  be  enforced  by  any  legal  or  equitable  remedy.  That 
the  said  tax  shall  not  be  levied  upon  aliens  who  shall 
enter  the  United  States  after  an  uninterrupted  residence 
of  at  least  one  year,  immediately  preceding  such  entrance, 
in  the  Dominion  of  Canada,  Newfoundland,  the  Republic 
of  Cuba,  or  the  Republic  of  Mexico,  nor  upon  otherwise 
admissible  residents  of  any  possession  of  the  United 
States,  nor  upon  aliens  in  transit  through  the  United 
States,  nor  upon  aliens  who  have  been  lawfully  admitted 

^Considerable  light  regarding  the  meaning  and  intent  of  this  and  previous 
acts  may  be  obtained  from  the  reports  of  the  Senate  and  House  committees 
on  the  measures  proposed  and  adopted. 


152  The  Exclusion  and  Expulsion  of  Aliens. 


to  the  United  States  and  who  later  shall  go  in  transit  from 
one  part  of  the  United  States  to  another  through  foreign 
contiguous  territory:  Provided,  That  the  Commissioner 
General  of  Immigration,  under  the  direction  or  with  the 
approval  of  the  Secretary  of  Commerce  and  Labor,  by 
agreement  with  transportation  lines,  as  provided  in  section 
thirty-two  of  this  act,  may  arrange  in  some  other  manner 
for  the  payment  of  the  tax  imposed  by  this  section  upon 
any  or  all  aliens  seeking  admission  from  foreign  contigu- 
ous territory:  Provided  further,  That  if  in  any  fiscal 
year  the  amount  of  money  collected  under  the  provisions 
of  this  section  shall  exceed  two  million  five  hundred  thou- 
sand dollars,  the  excess  above  that  amount  shall  not  be 
added  to  the  “immigrant  fund:”  Provided  further,  That 
the  provisions  of  this  section  shall  not  apply  to  aliens  ar- 
riving in  Guam,  Porto  Rico,  or  Hawaii;  but  if  any  such 
alien,  not  having  become  a citizen  of  the  United  States, 
shall  later  arrive  at  any  port  or  place  of  the  United  States 
on  the  North  American  Continent  the  provisions  of  this 
section  shall  apply : Provided  further,  That  whenever  the 
President  shall  be  satisfied,  that  passports  issued  by  any 
foreign  government  to  its  citizens  to  go  to  any  country 
other  than  the  United  States  or  to  any  insular  possession 
of  the  United  States  or  to  the  Canal  Zone  are  being  used 
for  the  purpose  of  enabling  the  holders  to  come  to  the 
continental  territory  of  the  United  States  to  the  detriment 
of  labor  conditions  therein,  the  President  may  refuse  to 
permit  such  citizens  of  the  country  issuing  such  passports 
to  enter  the  continental  territory  of  the  United  States  from 
such  other  country  or  from  such  insular  possessions  or 
from  the  Canal  Zone. 


The  Head  Tax. 

Levy  and  Collection  of  Head  Tax. 

Section  1 of  the  act  provides  that  there  shall  be  levied, 
collected  and  paid  a tax  of  four  dollars  for  every  alien 
entering  the  United  States.  By  the  same  section  the  Com- 
missioner General  of  Immigration  is  authorized,  under  the 
direction  or  with  the  approval  of  the  Secretary  of  Com- 
merce and  Labor,  to  arrange  for  the  payment  of  the  tax 
imposed  upon  any  or  all  aliens  seeking  admission  from 


The  Existing  Immigration  Law. 


153 


foreign  contiguous  territory,  by  agreement  with  trans- 
portation lines,  as  provided  in  section  32  of  the  act.  Sec- 
tion 32  sets  out  that  the  Commissioner  General  shall  pre- 
scribe rules  for  the  entry  and  inspection  of  aliens  along  the 
borders  of  Canada  and  Mexico  so  as  not  to  unnecessarily 
delay,  impede,  or  annoy  passengers  in  ordinary  travel  be- 
tween the  United  States  and  said  countries,  and  shall  have 
power  to  enter  into  contracts  with  transportation  lines 
for  this  purpose.  Acting  in  the  exercise  of  these  powers 
the  Commissioner  General  of  Immigration  has  entered  into 
an  agreement  with  the  various  steamship  and  railroad 
companies  in  the  Dominion  of  Canada,  embodied  in  Rule 
125  of  the  Immigration  rules.  In  subdivision  3 of  said 
rule,  it  is  provided  that  the  masters,  owners,  or  agents  of 
vessels  bringing  aliens  to  Canadian  ports  bound  for  the 
United  States  shall  pay  to  the  United  States  Commissioner 
of  Immigration  for  Canada  the  sum  of  four  dollars  for 
each  and  every  alien  brought  to  a Canadian  port  bound 
for  the  United  States,  provided  that  no  head  tax  shall  be 
levied  against  or  collected  from  Canadian  steamship  lines 
on  aliens  brought  to  Canada  bound  for  the  United  States 
who  are  shown  to  belong  to  any  one  of  the  excluded  classes 
and  returned  to  the  country  whence  they  came. 

Under  Rule  136  provision  is  made  for  the  collection  of 
the  head  tax  on  the  Mexican  border. 

The  right  to  demand  payment  of  a head  tax  on  account 
of  aliens  was  upheld  and  unqualifiedly  affirmed  in  the 
group  of  cases  headed  by  that  of  Edye  v.  Robinson,7  known 
as  the  Head  Money  Cases,  where  the  collection  thereof  was 
assailed  on  constitutional  grounds.  The  tax  prescribed 
by  section  1 of  the  Act  of  August  3,  1882,  at  the  rate  of 
fifty  cents  for  each  alien  passenger,  and  later  raised  to  one 
dollar  by  the  Sundry  Civil  Appropriation  Act  of  August 

sThis  rule  is  quoted  in  full  in  connection  with  the  discussion  of  section  32 
of  this  act,  post,  p.  300. 

6See  Post , p.  305. 

U12  U.  S.  580,  28  Law.  Ed.  798. 


154  The  Exclusion  and  Expulsion  of  Aliens. 

18,  1894,  was  upheld  on  the  ground  that  “in  the  exercise 
of  its  power  to  regulate  immigration  and  in  the  very  act 
of  exercising  that  power  it  was  competent  for  Congress 
to  impose  this  contribution  on  the  ship  owners  engaged 
in  the  business;”  and  to  the  objection  that  the  effect  of 
the  tax  compelled  the  ultimate  payment  of  the  sum  de- 
manded for  each  passenger  by  that  passenger  himself,  the 
court  said  “it  is  enough  to  say  that  Congress  having  the 
power  to  pass  a law  regulating  immigration  as  a part 
of  the  commerce  of  this  country  with  foreign  nations,  we 
see  nothing  in  the  statute  by  which  it  has  here  exercised 
that  power  forbidden  by  any  other  part  of  the  Constitu- 
tion.” 

The  amount  of  the  head  tax  imposed  by  the  Act  of  Au- 
gust 18,  1894,  was  doubled  by  the  Act  of  March  3,  1903, 
and  this  was  in  turn  doubled,  so  that,  as  will  be  seen  by 
reference  to  section  1 of  the  present  act,  the  amount  of  the 
head  tax  is  four  dollars. 

To  Whom  Paid. 

Section  1 of  the  act  provides  that  the  tax  shall  be  paid 
to  the  collector  of  customs  of  the  port  or  customs  district  to 
which  the  alien  shall  come,  or,  in  the  absence  of  such  col- 
lector at  the  port  or  district,  then  to  the  collector  nearest 
thereto.  Under  the  Canadian  agreement8  payment  of  the 
head  tax  is  required  to  be  made  to  the  United  States  Com- 
missioner of  Immigration  for  Canada. 

By  Whom  Paid. 

The  tax  must  be  paid  by  the  master,  agent,  owner  or  con- 
signee of  the  vessel,  transportation  line  or  other  convey- 
ance or  vehicle  bringing  the  alien  to  the  United  States. 
Under  the  Canadian  Agreement,  it  must  be  paid  by  the 
master,  owner,  or  agent  of  vessels  bringing  aliens  to  Ca- 
nadian ports  bound  for  the  United  States.9  At  the  Mex- 

sRule  12. 

»Rule  12,  subdivision  3. 


The  Existing  Immigration  Law. 


155 


lean  border  the  amount  of  the  head  tax  must  be  paid  by 
the  transportation  or  bridge  company  bringing  the  alien 
to  the  border  ports;10  in  the  case  of  taxable  aliens  who 
cross  the  border  by  other  than  regular  (bridges  or  rail) 
transportation,  the  payment  must  be  paid  by  the  alien 
himself  if  he  is  found  eligible  to  enter. 

Disposition  of  Sums  Collected  by  Way  of  Head  Tax. 

The  act  provides  that  the  money  thus  collected,  to- 
gether with  all  fines  and  rentals  collected  under  the  laws 
regulating  the  immigration  of  aliens,  shall  be  paid  into  the 
Treasury  of  the  United  States  and  constitute  a permanent 
appropriation  to  be  called  the  immigration  fund.  This 
provision  has,  however,  been  repealed  by  the  Act  of  March 
4,  1909, 11  which  provides  that  on  July  1,  1909,  all  the  head 
tax  fines  and  rentals  collected  under  this  act  shall  be  cov- 
ered into  the  treasury  to  the  credit  of  miscellaneous  re- 
ceipts. 

The  Tax  a Lien. 

The  head  tax  imposed  by  the  Act  of  August  3,  1882,  was 
held  by  the  Attorney  General  to  constitute  a lien  upon  the 
vessel  as  well  as  a debt  against  the  owner  thereof.12  The 
present  act  provides  that  the  tax  shall  be  a lien  upon  the 
vessel  or  other  vehicle  of  carriage  or  transportation  bring- 
ing aliens  into  the  United  States,  and  shall  also  constitute 
a debt  in  favor  of  the  Untied  States  against  the  owner  or 
owners  of  such  vessel  or  other  vehicle,  and  that  the  pay- 
ment of  the  tax  may  be  enforced  by  any  legal  or  equitable 
remedy. 

Persons  on  Whose  Account  the  Tax  May  be  Levied. 

These  persons  are  stated  at  the  outset  of  section  1 of  the 
act  to  be  every  alien  entering  the  United  States.  This 
sweeping  classification  is,  however,  greatly  modified  by 

loRule  13,  subdivision  2. 

ii35  Stats.  981. 

1219  Op.  Atty.  Gen.  660. 


156  The  Exclusion  and  Expulsion  of  Aliens. 


the  exceptions  later  stated  in  the  section,  the  first  of  which 
applies  to  aliens  who  shall  enter  the  United  States  after 
an  uninterrupted  residence  of  at  least  one  year  in  Canada, 
Newfoundland,  Cuba,  or  Mexico.  The  Department  of 
Commerce  and  Labor  has  construed  the  words  “uninter- 
rupted residence  of  at  least  one  year  immediately  preced- 
ing such  entrance”  to  mean  a bona  fide  residence  and  legal 
domicile  and  not  necessarily  actual  physical  residence. 

Kule  l13  provides  that,  among  others,  the  following  aliens 
shall  be  exempt  from  the  payment  of  the  head  tax : 

Aliens  entering  the  United  States  from  Canada,  New- 
foundland, Cuba,  or  Mexico,  whose  legal  domicile  or  bona 
fide  residence  was  in  one  of  these  countries  for  at  least 
one  year  immediately  preceding  such  entry.  This  exemp- 
tion shall  not  be  lost  merely  by  reason  of  temporary  ab- 
sences of  short  duration  therefrom,  nor  merely  because  in- 
stead of  entering  the  United  States  from  Canada,  New- 
foundland, Cuba,  or  Mexico,  the  aliens  come  by  way  of 
some  other  foreign  country  in  which  they  had  sojourned 
temporarily. 

Aliens  re-entering  the  United  States  from  Canada,  New- 
foundland, Cuba,  or  Mexico,  who  are  citizens  thereof  but 
who  have  acquired  a legal  domicile  or  bona  fide  residence 
in  the  United  States,  and  who  are  returning  from  a visit 
from  one  of  the  said  countries,  notwithstanding  the  period 
of  a full  year  has  not  intervened  between  the  date  of  their 
departure  and  the  date  of  their  return  to  the  United  States. 

This  provision  indicates  that  in  the  opinion  of  the  De- 
partment aliens  lawfully  residing  in  the  United  States 
other  than  citizens  of  the  four  countries  must,  on  return- 
ing to  their  home  from  a visit  abroad,  be  subjected  to  the 
payment  of  the  tax.  This  view  would  seem  to  be  based 
on  the  construction  of  the  Attorney  General  of  the  Act  of 
August  3,  1882,  to  the  effect  that  the  fifty  cents  duty  pro- 
vided by  that  act  was  collectible  on  account  of  all  itinerant 

is  Subdivision  3. 

1418  Op.  Atty.  Gen.  185,  196,  1885. 


The  Existing  Immigration  Law. 


157 


persons,  not  citizens  of  the  United  States,  coming  to  the 
ports  of  this  country  from  foreign  ports,  and  was  demand- 
able  as  often  as  such  persons  should  enter.14 

The  question  as  to  whether  or  not  aliens  resident  in  the 
United  States  are,  under  the  present  act,  liable  to  the  pay- 
ment of  a head  tax  on  returning  home  from  a visit  abroad 
has  as  yet  never  arisen  for  judicial  determination,  although 
on  the  question  as  to  whether  such  aliens  are  generally  sub- 
ject to  the  provision  of  this  or  previous  acts  there  has  been 
and  still  is,  a decided  conflict  of  judicial  opinion.  This 
subject  is  considered  in  a later  chapter.15 

The  act  provides  that  the  tax  shall  not  be  levied  on 
admissible  residents  of  any  possession  of  the  United  States. 
If  the  term  “possession”  includes  the  continental  territory 
of  the  United  States — and  there  seems  to  be  no  good  reason 
why  it  should  not  be  so  considered — the  question  is  not  de- 
batable. If,  on  the  other  hand,  the  term  “possession” 
refers  to  the  extra-continental  territory  of  this  country  no 
good  reason  would  seem  to  exist  for  supposing  that  by  the 
use  of  the  term  in  that  restricted  sense  Congress  meant  to 
exclude  residents  of  the  North  American  Continent  from 
exemption.  It  is  the  fact  of  residence  in  the  United  States 
jurisdiction  which  gives  rise  to  the  exemption  in  such 
cases;  the  fact  of  residence  in  Canada,  Mexico,  Cuba  and 
Newfoundland  which  would  appear  to  exempt  residents  of 
any  one  of  these  dominions;  and  it  would  surely  be  a 
strange  construction  of  the  statute  which  would  impose  on 
residents  of  the  continental  territory  of  this  country  bur- 
dens from  which  inhabitants  of  its  dependencies,  not  to 
mention  those  of  foreign  jurisdictions,  are  relieved  by  the 
fact  of  residence  alone. 

As  shown  above  admissible  residents  of  any  possession 
of  the  United  States  are  exempt  under  Section  1 from  the 
payment  of  the  tax.  Yet  in  Rule  l16  it  is  provided  that  the 
exemption  can  be  claimed  only  on  behalf  of  “aliens,  other- 

i^Post,  p.  427. 

1 6 Subdivision  (d). 


158  The  Exclusion  and  Expulsion  of  Aliens, 

wise  admissible,  who  are  residents  of  any  possession  of  the 
United  States  and  who  at  the  time  of  admission  to  such 
possession  paid  head  tax.”  While  it  is  true  that  the  de- 
partmental rules  have  the  force  and  effect  of  law  when 
not  inconsistent  with  the  acts  which  they  are  intended  to 
enforce,  or  with  the  Constitution  or  existing  treaties,17 
this  general  principle  cannot  be  said  to  be  applicable  to  a 
case  like  the  present  where  the  department  attaches  condi- 
tions to  an  exemption  to  which  the  act  creating  it  attaches 
none.  It  would  seem  to  follow,  therefore,  that  an  alien 
who  has  entered  and  become  a resident  of  any  of  the  extra- 
continental possessions  of  the  United  States  would  not  be 
subject  on  a visit  to  the  United  States  to  the  payment  of  the 
head  tax  here,  irrespective  of  whether  or  not  he  has  paid 
the  head  tax  required  by  the  jurisdiction  in  which  he  is 
domiciled.  Citizens  of  the  Philippines  have  been  held 
not  to  be  subject  to  the  payment  of  the  tax  provided  by  the 
Act  of  March  3,  1903.18 

Aliens  in  Transit  Through  the  United  States 

are  exempt  from  the  payment  of  the  tax  by  the  terms  of 
section  1.  Rule  1 contains  the  following  provision : 

“Upon  the  arrival  of  aliens  at  a seaport  of  the  United 
States  or  at  any  designated  port  of  entry  on  the  Mexican 
border,  the  immigration  officer  therein  charged  shall  cer- 
tify to  the  collector  of  customs  the  number  of  such  aliens 
other  than  those  described  in  subdivision  3 hereof,  together 
with  the  name  of  the  transportation  agent  or  other  person 
responsible  for  the  payment  of  head  tax  due  in  respect  of 
them,  and  shall  specify  (1)  how  many  of  the  said  aliens 
have  been  held  for  special  inquiry,  and  (2)  how  many  claim 
to  enter  for  the  purpose  of  transit  through  the  United 
States.  Thereupon  the  collector  of  customs  shall  forthwith 
collect  a tax  of  four  dollars  for  each  alien  so  certified. 

Collections  pertaining  to  classes  of  aliens  (1)  and  (2) 

17 Ex  parte  Chow  Chok,  161  Fed.  627. 

1825  Op.  Atty.  Gen.  131,  1904. 


The  Existing  Immigration  Law. 


159 


above  referred  to  shall  be  held  in  a special  deposit,  to  be 
refunded  as  to  such  of  the  former  as  are  deported  and  as 
to  such  of  the  latter  as  are  promptly  shown  to  the  satisfac- 
tion of  said  immigration  officer,  and  in  any  event  within 
sixty  days  of  the  time  of  entry,  to  have  left  the  United 
States  within  thirty  days  of  the  time  of  entry.  Collections 
not  so  refunded  shall  be  accounted  for  in  the  regular  man- 
ner and  covered  into  the  treasury.  Where  proof  of  de- 
parture is  not  submitted  until  after  sixty  days  of  the  time 
of  entry  the  case  shall  be  reported  to  the  bureau.  No 
application  for  refund  of  head  tax  erroneously  collected 
shall  be  considered  by  the  Bureau  if  presented  after  sixty 
days  from  the  time  of  entry  unless  satisfactory  reason  for 
the  delay  is  shown  in  writing.” 

At  first  sight  this  rule  would  appeal  to  contradict  the 
provisions  of  the  act ; but  whether  there  is  a contradiction 
in  fact  depends  upon  whether  or  not  the  law  authorizes  the 
collection  of  the  amount  of  four  dollars  as  the  collection  of 
the  tax  itself,  or  merely  of  the  amount  of  the  tax  to  be  de- 
posited and  subsequently  refunded  on  a showing  that  the 
alien  has  left  the  country.  Although  the  rules  frequently 
make  use  of  the  terms  “refund  of  head  tax”  and  “payment 
of  deposit  of  head  tax,”  they  also  refer  to  the  deposit  “of 
the  amount  of  the  head  tax,”  the  facts  to  which  these  dif- 
ferent terms  have  reference  being  identical,  to  wit,  the 
deposit  required  from  an  alien  averring  the  intention  to 
pass  in  transit  through  the  United  States  in  order  to  guar- 
antee the  payment  of  the  head  tax  in  case  the  alien’s  pur- 
pose is  not  to  pass  through  and  out  of  the  country,  but  to 
make  it  his  home.  There  can  be  no  question  of  the  right 
of  the  Department  to  require  a deposit  of  the  amount  of  the 
tax.  Under  the  regulations  of  September  28,  1889,  a bond 
in  the  penal  sum  of  $200.00  was  required  for  each  Chinese 
laborer  claiming  to  be  in  transit  through  the  territory  of 
the  United  States,  conditioned  on  his  transit  and  actual 
departure  within  a reasonable  time;  by  the  regulations  of 
December  8, 1900,  the  bond  was  not  allowed  to  be  less  than 


160  The  Exclusion  and  Expulsion  of  Aliens. 

$500.00.  These  regulations  were  unqualifiedly  approved 
by  the  Supreme  Court  in  the  case  of  Fok  Yong  Yo  v.  United 
States.19 

A provision  in  substance  the  same  as  that  contained  in 
the  rule  above  quoted  appeared  in  Rule  15  of  the  regula- 
tions adopted  for  the  purpose  of  carrying  into  effect  the 
provisions  of  the  Act  of  1903,  and  it  was  held  valid  in  the 
case  of  Stratton  v.  Oceanic  Steamship  Company.20  The 
dissent  in  that  case  was  based  on  the  ground  that  the  effect 
of  the  regulation  was  to  impose  the  head  tax  from  which 
the  act  exempted  the  alien.  It  is  doubtful  whether  the 
question  would  have  arisen  had  not  the  amount  of  the 
deposit  been  the  same  as  that  of  the  head  tax;  but  in  any 
event  it  can  hardly  be  considered  practical,  inasmuch  as  it 
must  be  admitted  that  under  the  powers  conferred  on  him 
the  Commissioner  General  of  Immigration,  with  the  ap- 
proval of  the  Secretary  of  Commerce  and  Labor,  may  with 
reason  insist  upon  a sum  at  least  equal  to  the  tax  by  way 
of  guarantee. 

The  question  of  the  applicability  of  the  head  tax  require- 
ment to  aliens  in  transit  through  the  United  States,  or 
such  as  touch  at  its  ports  while  en  route  to  another  country 
has  received  the  consideration  of  the  Attorneys  General 
of  the  United  States  on  more  than  one  occasion.  The  re- 
quirement of  a “head  tax  deposit”  (that  is,  a deposit 
equivalent  in  amount  to  that  of  the  head  tax  imposed 
on  aliens  entering  the  country)  in  the  case  of  aliens  claim- 
ing to  be  in  transit  through  the  United  States,  has  been 
held  legal,  though  the  opinion  cited  contained  a caution 
against  too  strict  an  enforcement  of  the  regulation.21  An 
earlier  opinion  holds  that  the  tax  provided  by  the  Acts  of 
August  3, 1882,  and  August  18,  1894,  do  not  apply  to  aliens 
who  touch  at  our  ports  en  route  to  some  other  country  and 
whose  destination  is  not  the  United  States.22 

19185  U.  S.  296,  46  Law  Ed.  917. 

20140  Fed.  829. 

2i25  Op.  Atty.  Gen.  109,  January,  1904. 

2224  Op.  Atty.  Gen.  590,  February,  1903. 


The  Existing  Immigration  Law. 


161 


Aliens  Who  Bo  Not  Enter  the  United  States  Because  Ex- 
cluded 

from  admission  by  tlie  immigration  authorities  are  ex- 
empted from  the  payment  of  the  tax  by  section  1 as  of 
natural  and  necessary  implication.23  Yet,  as  has  been 
shown,24  Rule  1 provides  that  the  tax  collected  on  ac- 
count of  aliens  who  are  not  permitted  to  land  but  are  held 

for  examination  by  a board  of  special  inquiry shall 

be  held  as  a special  deposit  to  be  refunded when  the 

alien  detained  for  examination  has  been  excluded.’’  There 
appears  to  be  no  authority  for  the  collection  of  the  head 
tax  as  such  prior  to  the  admission  of  the  alien  on  whose 
account  it  may  later  be  collected ; and  even  granting  that 
the  “tax”  mentioned  in  the  rule  is  only  a sum  of  money 
equivalent  to  the  amount  of  the  tax,  and  not  the  tax  itself, 
the  reasons  for  requiring  the  deposit  of  the  same  in  the 
case  of  aliens  in  transit  do  not  seem  to  exist  where  the 
only  question  is  as  to  whether  an  alien  shall  be  admitted  as 
an  alien  immigrant,  and  who,  pending  such  determina- 
tion, is  detained  under  the  personal  supervision  of  the 
immigration  authorities,  or  under  the  personal  control 
of  the  master  of  the  vessel  bringing  such  alien  to  the 
United  States  port.  When  the  alien  is  within  the  control 
of  the  immigration  authorities  pending  the  determination 
of  the  question  of  whether  or  not  he  will  eventually  be  al- 
lowed to  enter,  it  is  not  perceived  what  room  there  is  for 

23lt  has  been  held  to  be  collectible  under  the  Act  of  August  3,  1882,  on 
account  of  convicts  or  lunatics,  although  by  the  terms  of  the  act  they  were 
not  permitted  to  land  (18  Op.  Atty.  Gen.  135).  That  act  provided  for  the 
payment  of  a duty  from  each  and  every  passenger  coming  by  steam  or  rail 
from  any  foreign  port  to  any  port  of  the  United  States.  If  the  tax  was 
to  be  considered  as  a duty,  it  is  hard  to  reconcile  the  payment  of  duty 
as  such  in  the  absence  of  entry  into  the  United  States  by  the  person  or 
thing  on  whose  account  the  duty  was  exacted;  especially  where,  as  in  this 
case,  the  law  prohibited  the  admission  of  the  person  into  the  United  States 
and  provided  for  his  deportation.  This  decision  can,  however,  have  no  bear- 
ing on  questions  arising  under  the  present  act,  as  the  tax  can  only  be  col- 
lected on  account  of  aliens  “entering  the  United  States. ’ ’ 

2*Ante,  p.  156. 


162  The  Exclusion  and  Expulsion  of  Aliens. 


a guaranty  on  the  part  of  the  transportation  company; 
and  when  he  is  within  the  control  of  the  master  the  act 
penalizes  carelessness  on  the  owner’s  part  which  results  in 
an  unlawful  entry  by  the  alien  in  a sum  many  times  exceed- 
ing the  amount  of  the  head  tax.25  In  considering  whether 
or  not  the  courts  would  uphold  this  provision  of  Rule  1 we 
go  no  further  than  to  say  that  as  yet  deposits  of  this  na- 
ture have  been  sustained  under  both  the  immigration  and 
Chinese  exclusion  acts  only  on  the  theory  that  they  consti- 
tute proper  means  to  prevent  violations  of  those  acts ; and 
that  while  deposits  may  be  lawfully  required  from  aliens 
purporting  to  enter  the  United  States  merely  for  the  pur- 
pose of  transit  on  the  ground  given,  those  grounds  should 
not  be  invoked  to  sustain  such  a requirement  in  the  case 
of  alien  immigrants  as  a condition  precedent  to  the  de- 
termination of  the  question  whether  or  not  they  shall  be 
allowed  to  enter  at  all.  It  may  be  said,  however,  that  this 
arrangement  is  largely  one  of  convenience  both  to  the  im- 
migration authorities  and  to  the  tranportation  companies, 
and  would  not  seem  a likely  one  to  be  submitted  to  judicial 
determination. 

Aliens  Who  Have  Been  Lawfully  Admitted  to  the  United 
States  and  Who  Shall  Later  Go  in  Transit  from  One 
Part  of  the  United  States  to  Another  Through  Foreign 
Contiguous  Territory 

are  likewise  exempt  from  the  payment  of  the  tax.  The  act 
makes  the  basis  of  exemption  prior  lawful  admission  to  the 
United  States;  and  to  this  condition  the  Department  at- 
taches another,  to  wit,  previous  payment  of  head  tax  at 
the  time  of  prior  admission.26  The  imposing  of  this  con- 
dition would,  however,  seem  to  be  authorized  in  all  cases 
where  the  payment  of  the  head  tax  was  at  the  time  of  entry 
a necessary  incident  of  lawful  admission. 

25Section  19. 

26Kule  1,  subdivision  3;  ante , p.  156. 


The  Existing  Immigration  Law. 


163 


Aliens  Arriving  in  Guam , Porto  Rico,  or  Hawaii 

are  not  subject  to  the  provisions  of  this  section;  but  if  any 
alien  not  having  become  a citizen  of  the  United  States  shall 
later  arrive  at  any  port  or  place  of  the  United  States  on 
the  North  American  Continent  the  provisions  of  this  sec- 
tion apply.  Rule  1,  subdivision  3,  provides  that  if  any 
such  person,  still  being  an  alien,  shall  later  reach  a United 
States  port  on  the  North  American  Continent,  head  tax 
must  be  paid  in  respect  of  him.  If  this  clause  means  that 
the  head  tax  shall  in  such  case  be  levied  and  collected 
merely  because  the  alien  has  not  become  a citizen  of  the 
United  States,  the  validity  of  the  rule  is  open  to  grave  ob- 
jection, as  it  goes  beyond  the  meaning  and  words  of  the 
act  which  says  that  in  the  cases  cited  the  provisions  of  sec- 
tion 1 shall  apply.  This  would  seem  to  mean  those  pro- 
visions taken  as  a whole;  taken  as  a whole  they  contain 
certain  specific  exemptions;  and  one  of  these  exemptions 
applies  to  alien  residents  of  any  possession  of  the  United 
States.  Read  in  the  light  of  this  provision  of  the  act,  an 
alien,  who  arrives  in  Guam,  Porto  Rico,  or  Hawaii,  and, 
while  he  does  not  become  a citizen  of  the  United  States, 
nevertheless  establishes  his  residence  in  any  one  of  those 
islands,  becomes  thereby  a resident  of  a possession  of  the 
United  States,  and  would  seem  necessarily  to  fall  within 
the  exemption  of  the  act. 

Subdivision  1 of  Rule  1 exempts  from  the  operation  of 
the  head  tax  provision  aliens  who  come  to  the  United  States 
from  Porto  Rico  or  Hawaii,  and  who  reach  those  places 
prior  to  July,  1907,  and  present  an  appropriate  certificate. 
The  certificate  referred  to  is  that  prescribed  in  Rule  14, 
which  contains  the  following  provisions : 

“ Aliens  arriving  in  Porto  Rico  or  Hawaii  bound  for  the 
continent  shall  be  inspected  and  given  a certificate,  signed 
by  the  immigration  officer  in  charge  at  San  Juan  or  Hono- 
lulu, showing  fact  and  date  of  landing  and  payment  of  head 
tax. 


164  The  Exclusion  and  Expulsion  of  Aliens. 


Aliens  who,  having  been  manifested  bona  fide  to  Porto 
Rico  or  Hawaii  and  having  resided  there  for  a time,  signify 
to  the  immigration  officer  in  charge  at  San  Juan  or  Hono- 
lulu an  intention  to  go  to  the  continent,  shall  be  furnished 
such  certificate,  as  evidence  of  their  regular  entry  at  an 
insular  port. 

Aliens  applying  at  continental  ports  and  surrendering 
the  certificate  above  described  shall,  upon  identification,  be 
admitted  without  further  examination.  Failure  to  present 
the  certificate  shall  be  deemed  presumptive  evidence  that 
examination  has  not  occurred  in  Porto  Rico  or  Hawaii,  and 
the  alien  shall  be  arrested  in  the  manner  provided  by  law 
and  deported,  unless  he  shows  that  his  presence  in  the 
country  is  lawful  or  that  the  limitation  of  the  statute  has 
expired.” 

Tourists. 

Aliens  visiting  the  United  States  as  tourists  on  pleasure 
or  business  are  exempt  under  subdivision  3 of  Rule  1 from 
the  payment  or  deposit  of  head  tax,  if  the  officer  in  charge 
is  satisfied  beyond  a reasonable  doubt  that  they  come  only 
to  visit  the  United  States  for  a short  period. 

Seamen 

landing  in  pursuit  of  their  calling  are  exempt  under  subdi- 
vision 3 of  Rule  1 from  the  payment  of  the  head  tax.  But, 
as  was  said  in  the  case  of  Taylor  v.  United  States,27  it  is  of 
course  possible  for  a foreign  sailor  to  land  unlawfully ; and 
when  that  landing  is  for  the  purpose  of  entering  this  coun- 
try in  the  capacity  of  an  alien  immigrant  the  foreigner  so 
doing  ipso  facto  ceases  to  be  a sailor,  is  removed  from  the 
exemption,  and  becomes  liable  to  the  payment  of  the  tax 
like  any  other  immigrant.  It  has  been  held  that  the  pay- 
ment of  the  head  tax  can  be  required  on  account  “horse- 
men” or  persons  shipping  on  a vessel  bound  for  the  ports  of 
the  United  States  in  charge  of  horses  being  transported  to 

27Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


The  Existing  Immigration  Law. 


165 


this  country  when  it  appeared  that  they  shipped  only  for 
the  voyage  over,  and  did  not  sign  for  the  round  trip,  and 
when  there  was,  furthermore,  no  evidence  that  they  in- 
tended to  return  by  the  same  vessel.28  The  dissent  on  the 
part  of  one  of  the  members  of  the  court  was  based  on  the 
ground  that  the  mere  fact  that  such  aliens  failed  to  sign  for 
the  return  trip  was  of  itself  no  indication  of  an  intention 
to  give  up  their  calling  and  to  take  up  their  residence  in  the 
United  States.  It  may  be  said  in  this  connection,  however, 
that  such  persons,  although  seamen  as  far  as  the  application 
of  the  immigration  acts  is  concerned,  are  not  professional 
mariners;  that  no  nautical  knowledge  is  required  on  the 
part  of  those  who  ship  merely  for  the  purpose  of  tending 
cattle  in  transportation,  and,  finally,  that  while  there  may 
be  persons  who  make  a living  by  services  regularly  rendered 
in  the  course  of  such  employment,  this  calling  can  hardly  be 
said  to  constitute  a recognized  trade  or  profession  in  the 
sense  of  a living  made  at  sea.  It  appears  that  there  is  good 
ground  for  a distinction  between  the  class  of  persons  thus 
employed  and  regular  seamen  whose  only  occupation  is  the 
sea;  hence  that  while  it  might  be  going  too  far  to  assume 
that  merely  because  a seaman  does  not  sign  for  a return 
voyage  from  a United  States  port  this  is  to  be  taken  as  in- 
dicating his  lack  of  intention  to  reship  in  the  ordinary 
course  of  his  occupation,  and,  on  the  contrary,  intends  to 
take  up  his  residence  in  this  country,  such  an  assumption 
may  be  warrantable  in  the  case  of  “horsemen”  whose  oc- 
cupation is  more  likely  than  not  to  terminate  with  any  par- 
ticular voyage.  It  may  be  added  that  the  Supreme  Court 
refused  on  application  to  grant  a writ  of  certiorari  re- 
quested in  the  case  last  cited ; and  that  in  connection  with 
this  denial  the  decision  of  the  Circuit  Court  of  Appeals 
gains  an  added  significance. 

It  has  been  held  that,  in  the  absence  of  evidence  showing 
that  a shipowner  had  reason  to  suppose  that  seamen  desert- 

28United  States  v.  Atlantic  Transport  Co.,  188  Fed.  42. 


166  The  Exclusion  and  Expulsion  of  Aliens. 

in g into  United  States  territory  made  the  voyage  to  this 
country  with  the  intention  to  desert  on  their  arrival  here, 
the  former  is  not  liable  for  the  payment  of  the  head  tax 
imposed  by  the  act.29 

Stowaways. 

Both  the  act  and  the  present  rules  in  force  are  silent 
on  the  application  of  the  head  tax  provisions  to  alien 
stowaways. 

Under  Rule  23  of  the  regulations  of  July  1,  1907, 80  it  was 
provided  that  head  tax  was  to  be  certified  on  their  account. 
This  obligation  would  seem  to  rest,  however,  on  the  condi- 
tion that  when  the  ship  arrives  at  the  United  States  port 
the  alien  is  still  a stowaway ; for  nothing  in  the  act  can  be 
construed  to  make  it  prohibitive  on  the  master’s  part  to 
allow  such  persons  to  sign  on  as  members  of  the  ship’s  crew 
as  long  as  such  action  is  bona  fide , and  the  alien  in  fact 
changes  his  character  from  that  of  stowaway  to  genuine 
seaman.  It  might  be  questioned,  however,  as  to  whether 
or  not  a greater  amount  of  precaution  in  granting  such  a 
person  shore  leave  while  in  a United  States  port  might 
be  demanded  of  the  master  than  in  the  case  of  the  members 
of  the  crew  whose  status  as  such  was  not  so  short  lived. 
This  very  question  arose  in  the  Taylor  case,31  where  the 
indictment  alleged  that  the  alien  was  a stowaway  under 
order  of  deportation.  But  the  court  held  that  there  was 
nothing  in  the  fact  that  an  alien  had  been  refused  leave 
to  land  and  had  been  ordered  to  be  deported  to  make  it 
impossible  as  a matter  of  law  for  the  British  master  sub- 
sequently to  accept  him  as  a sailor  on  the  high  seas  even  if 
bound  for  an  American  port.  The  authority  of  the  Secre- 
tary of  Commerce  and  Labor  would  not  seem  to  extend 
so  far  under  the  act  as  to  permit  him  lawfully  to  prohibit 
the  exercise  of  this  power  on  the  part  of  a master  even  in  an 

29United  States  v.  International  Mercantile  Marine  Co.,  171  Fed.  841. 

3013th  Edition. 

siTaylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


The  Existing  Immigration  Law. 


167 


American  port — and  certainly  not  when  in  the  open  sea 
and  flying  the  flag  of  his  nation. 

Arrangement  for  the  Collection  of  Head  Tax  Under  the 
Canadian  Agreement. 

Section  1 of  the  act  authorizes  the  Commissioner  Gen- 
eral of  Immigration  by  agreement  with  transportation 
lines,  as  provided  in  section  32  of  the  act,  to  arrange  for  the 
payment  of  the  tax  imposed  by  this  section  upon  any  or 
all  aliens  seeking  admission  from  foreign  contiguous  terri- 
tory ; and  section  32  authorizes  the  Commissioner  General 
to  prescribe  rules  for  the  entry  and  inspection  of  aliens 
along  the  borders  of  Canada  and  Mexico  and  to  enter 
into  contracts  with  transportation  lines  for  that  purpose. 
This  subject  is  fully  covered  in  the  discussion  of  section 
32.32 

The  Purpose  and  Intent  of  the  Head  Tax  Provisions. 

Viewed  in  the  light  of  the  above  rules,  considered  in 
connection  with  the  act  itself,  the  natural  conclusion 
reached  is  that  the  purpose  of  Congress  was  to  impose  a 
head  tax  on  a limited  class  of  aliens.  It  is  true  that  the 
act  provides  in  its  first  section  that  all  aliens  shall  be  sub- 
ject to  the  tax.  But  a careful  analysis  of  the  persons  and 
dasses  excepted  in  the  first  section  and  in  section  41 
points  to  the  fact  that  the  class  of  aliens  subject  thereto  is 
the  immigrant  class,  or  those  foreigners  who  come  to  the 
United  States  for  the  purpose  of  making  this  country  their 
home. 

Merely  because  the  act  may  be  said  generally  to  apply 
to  all  aliens — immigrants  and  others — it  does  not  follow 
that  all  of  its  provisions  apply  to  all  immigrants  and 
others.  First  of  all  it  excludes  all  aliens  whether  coming 
to  the  United  States  to  visit,  or  to  make  it  their  home,  who 
are  suffering  with  certain  mental,  physical,  or  moral  dis- 
abilities duly  set  forth  in  section  2.  The  act  does  not  pro- 


32 Post,  p.  300. 


168  The  Exclusion  and  Expulsion  of  Aliens. 


vide  rules  for  the  immigration  of  such  people;  it  merely 
provides  the  rules  under  which  they  are  excluded,  and 
authorizes  regulations  under  which  such  exclusion  can  be 
made  effective. 

Such  aliens  being  eliminated  from  the  operation  of  fur- 
ther provisions  of  the  act,  there  remain  subject  thereto 
immigrants  and  all  other  aliens,  who,  not  being  excluded, 
are  admitted.  The  first  condition  to  admission  being  the 
payment  of  the  head  tax,  both  immigrants  and  non-immi- 
grants would,  in  the  absence  of  certain  exempting  pro- 
visions, be  subject  thereto.  At  the  outset,  however,  section 
41  provides  that  the  act  shall  not  apply  to  accredited  of- 
ficials of  foreign  governments,  or  to  their  suites,  families, 
or  guests.  The  next  limitation  in  the  application  of  the 
head  tax  is  that  it  shall  not  be  paid  by  bona  fide  residents 
of  Canada,  Newfoundland,  Cuba  or  Mexico ; in  other  words, 
that  if  any  alien  inhabitant  of  the  North  American  Conti- 
nent, Newfoundland,  or  Cuba  does  not  come  to  the  United 
States  with  the  purpose  of  residing  there,  he  is  not  liable  to 
the  payment  of  the  tax.  The  second  limitation  is  in  favor 
of  any  alien  resident  of  “any  possession  of  the  United 
States.”  The  provision  does  not  designate  ex-continental 
or  insular  possessions,  but  uses  the  general  term  “any  pos- 
session.” As  to  this  second  exempted  class,  then,  a definite 
residence  already  acquired  is,  as  in  the  first  class,  appar- 
ently made  the  basis  of  the  exemption.  The  third  limita- 
tion includes  “all  aliens  in  transit  through  the  United 
States.”  As  entrance  into  the  United  States  for  the  pur- 
pose of  passing  through  it  is  wholly  dissociated  from  the 
fact  of  coming  to  its  shores  for  the  purpose  of  residing 
there,  the  fact  of  a residence  elsewhere  again  seems  to  be 
the  basis  for  the  exemption.  The  fourth  exemption  in  favor 
of  aliens  who,  having  lawfully  entered  the  United  States, 
shall  then  pass  in  transit  from  one  part  of  the  United 
States  to  another  through  foreign  contiguous  territory, 
applies  equally  to  those  who  are  and  who  are  not  exempted 
from  the  payment  of  the  tax  at  the  time  of  entry.  If 


The  Existing  Immigration  Law. 


169 


exempt  at  the  time  of  entry  the  exemption  continues;  if 
not,  payment  of  the  head  tax  will  not  he  required  a second 
time.  Rule  l,33  as  stated,34  provides  that  no  payment  or  de- 
posit of  head  tax  will  be  required  from  aliens  visiting  the 
United  States  as  tourists  on  pleasure  or  business.  The 
mere  fact  of  an  alien  coming  to  the  United  States  “on  a 
visit”  necessarily  implies  a residence  elsewhere.  Finally, 
all  will  agree  that  an  accredited  official  of  a foreign  govern- 
ment coming  to  the  United  States  necessarily  retains  his 
native  domicile  and  allegiance,  and  that  his  residence  here 
is  purely  temporary  and  for  official  purposes. 

In  view  of  these  provisions  it  may  be  said  that  the  act  ex- 
empts from  payment  of  the  head  tax  the  two  classes  of 
aliens,  i.  e.,  those  who  enter  the  United  States  and  who  are 
residents  of  any  possession  thereof;  and  those  who  enter 
the  United  States  and  have  a bona  fide  residence  elsewhere. 
Eliminating  these  two  classes — and  in  eliminating  them 
we  necessarily  eliminate  aliens  entering  this  country  for 
the  purposes  of  transit — there  remains  but  one  class 
of  aliens  to  be  considered — that  class  which  comes  to 
the  United  States  claiming  no  residence  therein  or 
elsewhere,  and  not  with  the  purpose  of  visiting  or 
passing  through  the  country  . This  class  must  nec- 
essarily consist  of  those  who  come  to  the  United 
States  with  the  purpose  of  making  it  their  home;  in 
other  words,  the  immigrant  class.  It  is  plain  that  the 
tax  is  not  imposed  as  conditional  to  mere  entry,  for 
an  alien  who  enters  lawfully  is  not  taxed  provided  he  does 
not  remain;  neither  is  it  imposed  as  a condition  of  the 
alien’s  presence  in  the  United  States,  for  the  law  exempts 
the  alien  therefrom  as  long  as  the  immigration  authorities 
have  no  good  reason  to  believe  that  the  presence  is  perma- 
nent. It  would  seem  to  follow  that  the  act  authorizes  the 
collection  of  the  head  tax  only  on  account  of  aliens  who, 

83 1,  subdivision  3-h. 

34 Ante,  p.  164.  o 


170  The  Exclusion  and  Expulsion  of  Aliens. 

giving  up  their  former  residence  and  domicile,  enter  the 
United  States  for  the  purpose  of  making  it  their  home 
and  permanently  residing  therein. 

That  part  of  section  1 which  relates  to  the  right  of  the 
President  to  exclude  aliens  who  are  found  to  be  abusing 
passport  privileges  will  be  discussed  in  connection  with 
section  2, 35  since  it  relates  to  an  excludable  class  of  foreign- 
ers. 

Section  2.  That  the  following  classes  of  aliens  shall  be 
excluded  from  admission  into  the  United  States : All  idiots, 
imbeciles,  feeble-minded  persons,  epileptics,  insane  per- 
sons, and  persons  who  have  been  insane  within  five  years 
previous;  persons  who  have  had  two  or  more  attacks  of 
insanity  at  any  time  previously;  paupers;  persons  likely 
to  become  a public  charge;  professional  beggars;  persons 
afflicted  with  tuberculosis  or  with  a loathsome  or  danger- 
ous contagious  disease;  persons  not  comprehended  within 
any  of  the  foregoing  excluded  classes  who  are  found  to  be 
and  are  certified  by  the  examining  surgeon  as  being  men- 
tally or  physically  defective,  such  mental  or  physical  defect 
being  of  a nature  which  may  affect  the  ability  of  such  alien 
to  earn  a living;  persons  who  have  been  convicted  of  or 
admit  having  committed  a.  felony  or  other  crime  or  misde- 
meanor involving  moral  turpitude ; polygamists,  or  persons 
who  admit  their  belief  in  the  practice  of  polygamy;  an- 
archists, or  persons  who  believe  in  or  advocate  the  over- 
throw by  force  or  violence  of  the  Government  of  the  United 
States,  or  of  all  government,  or  of  all  forms  of  law,  or  the 
assassination  of  public  officials;  prostitutes,  or  women  or 
girls  coming  into  the  United  States  for  the  purpose  of  pros- 
titution or  for  any  other  immoral  purpose ; persons  who  are 
supported  by  or  receive  in  whole  or  in  part  the  proceeds  of 
prostitution ; persons  who  procure  or  attempt  to  bring  in 
prostitutes  or  women  or  girls  for  the  purpose  of  prostitu- 
tion or  for  any  other  immoral  purpose;  persons  herein- 
after called  contract  laborers  who  have  been  induced  or 
solicited  to  migrate  to  this  country  by  offers  or  promises 
of  employment  or  in  consequence  of  agreements,  oral,  writ- 
ten or  printed,  expressed  or  implied,  to  perform  labor  in 

#55 Post,  p.  201. 


The  Existing  Immigration  Law.  171 

this  country  of  any  kind,  skilled  or  unskilled;  those  who 
have  been,  within  one  year  from  the  date  of  application 
for  admission  to  the  United  States,  deported  as  having  been 
induced  or  solicited  to  migrate  as  above  described;  any 
person  whose  ticket  or  passage  is  paid  for  with  the  money 
of  another,  or  who  is  assisted  by  others  to  come,  unless  it 
is  affirmatively  and  satisfactorily  shown  that  such  person 
does  not  belong  to  one  of  the  foregoing  excluded  classes  and 
that  said  ticket  or  passage  was  not  paid  for  by  any  corpora- 
tion, association,  society,  municipality,  or  foreign  govern- 
ment, either  directly  or  indirectly;  all  children  under  six- 
teen years  of  age  unaccompanied  by  one  or  both  of  their 
parents,  at  the  discretion  of  the  Secretary  of  Commerce 
and  Labor,  or  under  such  regulations  as  he  may  from  time 
to  time  prescribe : Provided , That  nothing  in  this  act  shall 
exclude,  if  other  wise  admissible,  persons  convicted  of  an  of- 
fense purely  political,  not  involving  moral  turpitude : Pro- 
vided further , That  the  provisions  of  this  section  relating 
to  the  payments  for  tickets  or  passage  by  any  corporation, 
association,  society,  municipality,  or  foreign  government 
shall  not  apply  to  the  tickets  or  passage  of  aliens  in  imme- 
diate and  continuous  transit  through  the  United  States  to 
foreign  contiguous  territory : And  provided  further , That 
skilled  labor  may  be  imported  if  labor  of  like  kind  unem- 
ployed can  not  be  found  in  this  country:  And  provided 
further,  That  the  provisions  of  this  law  applicable  to  con- 
tract labor  shall  not  be  held  to  exclude  professional  actors, 
artists,  lecturers,  singers,  ministers  of  any  religious  de- 
nomination, professor  for  colleges  or  seminaries,  persons 
belonging  to  any  recognized  learned  profession,  or  persons 
employed  strictly  as  personal  or  domestic  servants. 

A Miens  Excluded  from  Admission  into  the  United  States. 

In  considering  what  aliens  are  excluded  from  admission 
into  the  United  States  the  term  admission  must  be  under- 
stood in  its  legal  sense,  i.  e.,  as  designating  not  mere  phys- 
ical presence  in  the  ports  or  territory  of  the  United  States, 
but  physical  presence  coupled  with  permission  of  the  proper 
authorities  to  enter  and  be  at  large  after  examination  by 
those  authorities  as  to  the  lawful  right  of  such  aliens  to 
enter.  The  act  itself  provides  that  the  mere  fact  of  land- 


172  The  Exclusion  and  Expulsion  of  Aliens. 


ing  for  the  purpose  of  such  examination,  or  of  detention 
in  hospital  or  elsewhere  pending  such  examination,  or 
pending  deportation  or  eventual  entry  shall  not  be  deemed 
a landing  in  law.36 

As  stated37  the  aliens  excludable  under  section  2 of 
the  act  are  (with  certain  exceptions  to  be  considered  later) 
all  aliens  attempting  to  enter  the  United  States,  and  this 
irrespective  of  whether  or  not  any  such  alien  is  seeking 
to  enter  with  the  intention  of  taking  up  his  residence  in 
this  country.  The  power  of  Congress  to  admit  or  exclude 
aliens  whether  in  the  exercise  of  the  right  inherent  in 
every  sovereign  state  so  to  do,  or  of  the  right  to  regulate 
commerce  with  foreign  nations,  is  not  open  to  contro- 
versy ;38  and  in  the  exercise  of  that  right  it  may  regulate  the 
admission  of  any  and  all  aliens  even  under  an  act  the 
primary  purpose  of  which  appears  by  its  title  to  be  directed 
against  a special  class,  in  the  absence  of  other  provisions 
of  the  same  act  which  conclusively  indicate  that  the  opera- 
tion thereof  is  to  be  limited  to  the  class  designated  in  the 
title.  The  present  act,  however,  contains  no  such  restric- 
tive provisions;  on  the  contrary,  the  wording  of  at  least 
one  of  its  sections  has  been  held  to  be  such  as  “to  avoid  the 
suggestion  that  no  one  was  within  the  act  who  did  not 
come  here  with  the  intent  to  remain.”  39  But,  aside  from 
the  high  authority  cited,  a general  reading  of  the  law  points 
to  the  conclusion  that  Congress,  in  enacting  these  provi- 
sions, has  exercised  not  only  its  undeniable  right  to  protect 
the  United  States  against  receiving  undesirable  residents, 
but  the  equally  incontestable  right  to  protect  this  country 
against  the  mere  presence  or  contact  of  any  and  all  aliens, 
which,  in  the  opinion  of  Congress  might  prove  a menace 
to  our  population  and  institutions.  Where,  however,  the 
act  is  invoked  in  support  of  the  right  to  exclude  under 

aeSection  16. 

37 Ante,  p.  149. 

38United  States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law  Ed.  979. 

ssTaylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


The  Existing  Immigration  Law. 


3 


circumstances  where  to  do  so  would  mean  the  invasion  of 
private  rights  of  domicile  lawfully  acquired,  such  a claim 
can  only  be  supported  by  direct  provisions  contained  in 
the  act  showing  that  the  intention  of  Congress  was  to  bring 
about  such  a result. 

A. 

“All  idiots,  imbeciles,  feeble-minded  persons,  epileptics, 
insane  persons  and  persons  who  have  been  insane  within 
five  years  previous;  persons  who  have  had  two  or  more 
attacks  of  insanity  at  any  time  within  five  years  previ- 
ously.” 

Lunatics  and  idiots  were  excluded  by  the  Act  of  August 
3,  1882.  Imbeciles  and  feeble-minded  persons,  as  well  as 
those  who  have  been  insane  within  five  years  previous,  and 
epileptics  are  excluded  under  the  present  act  for  reasons 
which  are  obvious  and  equally  sound.  From  the  fact  that 
a person  has  had  two  or  more  attacks  of  insanity  at  any 
time  previous  to  his  attempt  to  obtain  admission  to  the 
United  States,  or  from  the  fact  of  his  insanity  within  five 
years  prior  to  his  coming,  it  may  justly  be  presumed  that 
such  attacks  are  not  unlikely  to  recur,  or  that  an  intellect 
which  has  within  five  years  been  utterly  prostrated  is  not 
free  from  the  effects  of  the  disease.  Complete  recovery 
from  such  attacks  is,  for  all  practical  purposes,  and  par- 
ticularly under  the  conditions  surrounding  the  landing  of 
immigrants,  incapable  of  absolute  proof;  and  Congress, 
in  the  exercise  of  its  power  to  protect  citizens  and  property 
in  the  United  States  from  the  acts  of  insane  persons,  is  not 
limited  to  the  exclusion  of  those  whose  insanity  is  a proven 
fact,  but  may  justly  exclude  those  from  whom  such  acts 
may  probably  or  even  possibly  be  expected.  It  would, 
therefore,  seem  absolutely  necessary  that  some  reasonable 
and  fair  standard,  such  as  that  provided  should  be  ac- 
cepted by  which  the  applicant’s  mental  qualifications  for 
admission  can  be  determined  by  the  board  of  special  in- 
quiry provided  in  section  25,  in  the  absence  of  expert  tes- 
timony as  to  present  mental  condition  or  the  likelihood  of 


174  The  Exclusion  and  Expulsion  of  Aliens. 

recurring  attacks.  There  would  seem  to  be  no  valid  reason 
against  providing  that  aliens  giving  indications  of  insanity 
after  admission  should  be  deported  on  the  ground  of  having 
been  thus  affected  at  the  time  of  their  admission,  should 
the  symptoms  develop  within  so  short  a period  after  ar- 
rival as  to  give  just  ground  for  such  presumption.  In  the 
absence  of  such  a provision,  however,  such  alien  must  be 
deemed  to  be  lawfully  in  the  United  States. 

B. 

“Persons  afflicted  with  tuberculosis,  or  with  a loathsome 
or  dangerous  contagious  disease;  persons  not  compre- 
hended within  any  of  the  foregoing  excluded  classes  who 
are  found  to  be  and  who  are  certified  by  the  examining  sur- 
geon as  being  mentally  or  physically  defective,  such  mental 
or  physical  defect  being  of  a nature  which  might  affect  the 
ability  of  such  alien  to  earn  a living.” 

Persons  afflicted  with  tuberculosis  might  well,  it  would 
seem,  have  been  excluded  under  the  Act  of  1903,  although 
the  disease  is  not  specfieally  mentioned  in  section  2 of  that  . 
act.  In  fact,  persons  afflicted  with  pulmonary  tuberculosis 
(or  consumption)  and  tuberculosis  in  flagrantly  con- 
tagious forms  were  excluded  thereunder.  The  admission 
of  any  alien  afflicted  with  tuberculosis  in  any  form  is, 
however,  specifically  prohibited  under  the  present  act. 

While  it  is  true  that  those  aliens  above  described  as 
“mentally  and  physically  defective,”  may,  in  individual 
cases,  be  found  to  be  “likely  to  become  a public  charge,” 
and  excludable  under  the  clause  in  this  section  of  the 
act  which  excludes  aliens  merely  because  they  are  held 
likely  to  so  become  irrespective  of  any  mental  or  physical 
disability,  the  denomination  of  aliens  thus  affected  is  not 
strictly  synonymous  with  the  term  “likely  to  become  a 
public  charge.”  The  wording  of  the  section  is  such  that 
it  is  clear  that  aliens  mentally  or  physically  defective, 
such  mental  or  physical  defect  being  of  a nature  which 
may  affect  their  ability  to  earn  a living,  constitute  a sepa- 
rate excludable  class,  while  aliens  may  be  affected  with 


The  Existing  Immigration  Law. 


175 


mental  or  physical  ailments  which  may  not  be  of  such  a 
nature  as  to  lead  to  their  becoming  an  object  of  the 
public  bounty.  On  the  other  hand,  such  a contingency 
may  be  likely  to  occur  from  causes  purely  temperamental, 
or  from  the  mere  fact  of  the  lack  of  funds  on  the  part  of 
the  applicant  for  admission,  aside  and  apart  from  the 
question  of  either  physical  or  mental  disability. 

C. 

“Paupers;  persons  likely  to  become  a public  charge; 
professional  beggars.” 

Professional  beggars  were  first  excluded  in  terms  in 
the  Act  of  1903, 40  and  paupers  have  in  terms  been  ex- 
cluded since  the  Act  of  March  3,  1891.41  Persons  likely 
to  become  a public  charge  have  been  excluded  ever  since 
the  passage  of  the  Act  of  August  3,  1882, 42  which  forbade 
the  admission  of  any  “person  unable  to  take  care  of  him- 
self or  herself  without  becoming  a public  charge.”  The 
excluding  clause  just  cited  was  held  not  to  refer  to  the 
passenger’s  personal  efforts  alone,  but  to  be  aimed  at  those 
who  were  likely  to  become  public  charges,  either  because 
of  their  own  inability  to  maintain  themselves,  or  because 
of  the  inability  or  unwillingness  of  other  persons  to  main- 
tain them.43  Such  aliens  are  not  exempted  frotn  the 
operation  of  the  immigration  acts  because  of  a treaty 
entered  into  between  the  United  States  and  the  alien’s 
sovereign,  when  such  treaty  excepts  from  its  operation 
any  ordinance  or  regulation  relating  to  police  and  public 
security.44  The  term  “likely  to  become  a public  charge”  as 
used  in  the  present  act  includes  the  likelihood  of  becoming 
a criminal  as  well  as  a pauper/6 

4032  Stat.  at  L.,  part  1,  p.  1213. 

4i26  Stat.  at  L.  1084. 

4222  Stat.  at  L.  214. 

43 In  re  Day,  27  Fed.  680. 

44 Japanese  Immigrant  Case,  189  U.  S.  86,  1903,  47  Law  Ed.  721. 

46United  States  v.  Williams,  175  Fed.  274. 


176  The  Exclusion  and  Expulsion  of  Aliens. 
Admission  Under  Bond. 

The  subject  of  the  admission  under  bond  of  persons 
likely  to  become  public  charges  will  be  discussed  in  con- 
nection with  section  26.47 

D. 

“Persons  who  have  been  convicted  of  or  admit  having 
committed  a felony  or  other  crime  or  misdemeanor  involv- 
ing moral  turpitude.” 

The  Act  of  1875  forbade  admission  into  the  United 
States  of  aliens  “who  are  undergoing  a sentence  for  con- 
viction in  their  own  country  of  felonious  crimes  other 
than  political  or  growing  out  of  or  the  result  of  such 
political  offenses,  or  whose  sentence  has  been  remitted  on 
condition  of  their  emigration;”  the  purpose  of  the  pro- 
vision being  apparently  aimed,  not  at  persons  who  had 
been  convicted  of  felonies  abroad,  but  at  escaped  convicts, 
or  convicts  released  only  on  the  condition  that  they 
should  leave  their  country.  The  Act  of  1882  prohibited 
the  admission  of  “convicts,”  and  made  provision  for  their 
return.  The  Act  of  1891  forbade  the  entrance  of  any  per- 
sons “who  have  been  convicted  of  a felony  or  other  in- 
famous crime  or  misdemeanor  involving  moral  turpitude,” 
with  the  proviso  that  the  act  should  not  apply  to  persons 
convicted  of  a political  offense  “notwithstanding  said 
political  offense  may  be  designated  as  a felony,  crime,  in- 
famous crime,  or  misdemeanor,  involving  moral  turpitude 
by  laws  of  the  land  whence  he  came  or  by  the  court  con- 
victing.” In  the  Act  of  1893,  the  clause  immediately  pre- 
ceding was  omitted,  presumably  on  the  ground  that  the 
question  of  moral  turpitude  was  vital  only  inasmuch  as 
it  might  be  deemed  to  affect  the  interests  and  safety  of  the 
people  with  whom  the  alien  might  be  allowed  to  mingle 
and  consort,  of  which  interests  and  safety  Congress  might 
well  be  considered  a sufficient  judge,  irrespective  of  the 
expressions  of  foreign  laws  or  foreign  tribunals  Under 


*7 Post,  p.  295. 


The  Existing  Immigration  Law. 


17T 


the  present  act  Congress  has  gone  a step  further  in  mak- 
ing an  admission  of  the  commission  of  crime  or  misde- 
meanor good  cause  for  exclusion. 

The  admission. 

Since  deportation  proceedings  are  not  criminal  by  na- 
ture, it  would  be  unsafe  to  contend  that  the  effectiveness 
of  the  admission  as  a ground  of  expulsion  necessarily  de- 
j>ends  on  its  voluntary  character.  The  question  has  not 
thus  far  arisen  for  judicial  consideration.  The  writer 
takes  the  view  that,  where  such  an  admission  is  relied  on 
as  a ground  of  expulsion  or  exclusion,  the  fact  that  it  was 
actually  obtained  by  means  of  deceit  or  threats  will  not, 
per  se , establish  a defense  on  which  the  alien  can  always 
rely.48  But  on  the  other  hand  when  an  executive  officer  is 
satisfied  that  the  admission  has  been  thus  unfairly  ob- 
tained he  should  exercise  the  greatest  vigilance  in  decid- 
ing whether  the  damaging  statement  represents  the  fact. 
Otherwise  there  would  be  no  admission,  whether  justly  or 
unjustly  obtained,  on  which  to  base  an  excluding  or  ex- 
pelling decision.  What  the  officer  is  seeking  is  the  true 
state  of  facts;  and  it  would  seem  that,  in  the  procedure 
governing  deportation  proceedings,  he  should  not  be 
bound  by  those  considerations  which  obtain  in  criminal 
trials,  and  which,  on  grounds  of  public  policy,  have  led  to 
the  adoption  of  the  principle  that  it  is  better  that  the  ex- 
istence of  a suspected  state  of  facts  remain  unrevealed 
than  that  it  be  brought  to  light  as  the  result  of  unlawful 
or  unfair  methods.  But  if  the  alleged  admission  is  ob- 
tained by  threats  of  violence,  or  otherwise  unfairly  in  the 
course  of  a hearing — as  contrasted  with  a prior  statement 
which  is  later  made  the  basis  of  those  proceedings — the 
author  is  of  the  opinion  that  it  cannot  be  justly  made  the 

48lt  has  been  held  that  admissions  by  aliens  in  proceedings  for  deportation 
on  the  ground  of  being  unlawfully  in  the  country  are  legal  evidence  in  the 
absence  of  improper  means  employed  for  securing  such  admissions  or  con- 
fessions. In  re  Umeno,  3 U.  S.  D.  Ct.  Hawaii  481;  and  see  In  re  Lea,  126 
Fed.  234. 


178  The  Exclusion  and  Expulsion  of  Aliens. 


basis  of  deportation  on  that  count.  This  is  not  because 
the  admission  could  not  be  considered  as  evidence  by  the 
executive  officers,  but  because  the  manner  in  which  it  has 
been  obtained  taints  the  bona  fides  of  the  hearing,  and 
should  result  in  throwing  the  proceedings  open  to  judical 
review.49 

It  has  been  held  that  the  question  of  whether  such  an 
admission  has  been  obtained  prior  to  the  hearing  by  ply- 
ing the  prisoner  with  liquor  or  by  means  of  threats  is  a 
pure  question  of  fact  for  the  executive  authorities.50 

The  act  does  not  authorize  the  deportation  of  an  alien 
on  the  ground  of  having  been  convicted  of  a felony  where 
it  appears  that  the  foreign  conviction  did  not  occur  until 
after  his  admission  into  the  United  States.51  The  Act  of 
1882  has  been  construed  to  bar  admission  into  this  coun- 
try to  aliens  who  have  been  convicted  in  a foreign  country 
of  an  assault  with  a deadly  weapon  ;52  but  by  the  terms  of 
that  act  “any  convict”  was  not  entitled  to  land.  Since 
the  Act  of  1891  the  crime  or  misdemeanor  must,  to  prove 
a bar  to  admission,  involve  moral  turpitude.  Thus, 
the  act  of  stabbing  a man  in  Italy  in  retaliation  for  an 
unprovoked  assault  was  held  (obiter)  not  to  involve 
moral  turpitude  ;53  and  in  a later  case54  the  point  came  up 
squarely  for  decision  as  to  whether  or  not  the  crime  of 
stabbing  another  involves  moral  turpitude,  and  the  court 

49  It  was  held  in  the  case  of  a domiciled  alien  who  on  the  occasion  of 
his  return  from  his  second  visit  abroad  had  given  a false  name  to  the 
inspection  officer  and  who  was  later  arrested  on  the  ground  of  having  ad- 
mitted the  commission  of  a crime  involving  moral  turpitude  that  the  court 
would  not  interfere  with  the  order  of  deportation;  but  the  dissenting  judge 
said  that  a hearing  could  not  be  fair  in  which  it  was  attempted  to  supply 
the  absence  of  an  admission  by  proof  of  the  wrongful  act  or  at  which  it 
was  held  that  giving  a false  name  on  re-entry  was  tantamount  to  entry 
without  inspection.  United  States  ex  rel.  Elliopulos  v.  Williams,  192  Fed. 
536. 

soGrlavas  v.  Williams,  190  Fed.  686. 

siEx  parte  Koerner,  176  Fed.  478;  Ex  parte  Watchorn,  160  Fed.  1014. 

62 In  re  Aliano,  43  Fed.  517. 

63United  States  ex  Funaro  v.  Watchorn,  164  Fed.  152. 

6*United  States  ex  rel.  Calamia  v.  Redfern  180  Fed.  506. 


The  Existing  Immigration  Law. 


179 


held  that  it  did  not.  Nor,  it  seems,  does  the  act  of  striking 
another  with  a piece  of  firewood  when  a third  party  is 
attacking  the  same  party  with  a knife,55  nor  does  the  act 
of  carrying  concealed  weapons  constitute  such  an  of- 
fense.56 But  these  authorities  cannot,  it  is  thought,  be 
deemed  conclusive  on  the  point  that  under  no  circum- 
stances could  such  acts  involve  moral  turpitude;  and  it 
seems  not  unreasonable  to  suppose  that  were  such  as- 
saults committed  under  circumstances  showing  treachery 
or  deceit  on  the  part  of  the  defender  or  even,  perhaps,  the 
employment  of  overwhelming  force  while  the  victim  was 
at  an  utter  disadvantage,  either  by  virtue  of  sex,  old  age, 
infancy  or  by  being  asleep,  sick  or  helpless  at  the  mo- 
ment of  attack,  the  opposite  conclusion  might  well  be 
reached. 

It  has  been  held  that  a single  act  of  fornication  in 
Austria  by  a married  alien  with  an  unmarried  woman, 
constituting  as  it  does  neither  crime  nor  misdemeanor 
under  the  Austrian  law,  and  little  more  than  a private 
wrong  under  the  common  law,  cannot  constitute  grounds 
for  deportation  from  the  United  States  under  this  sec- 
tion.57 This  case  was  subsequently  reversed  by  the  Cir- 
cuit Court  of  Appeals.58  It  is  to  be  observed  however,  that 
the  court  in  the  case  last  cited  did  not  expressly  state  that 
the  act  did  not  involve  moral  turpitude;  but  based  its  de- 
cision on  the  fact  that  it  did  not  constitute  a crime  or  a 
misdemeanor  in  the  jurisdiction  where  it  was  committed.5851 

It  seems  that  in  order  to  subject  the  alien  to  deporta- 
tion under  this  section  the  crime  must  have  been  com- 
mitted prior  to  admission  into  the  United  States;  and 

55 Ex  parte  George,  180  Fed.  785. 

56 Ex  parte  Saraceno,  182  Fed.  955. 

57United  States  ex  rel.  Huber  v.  Sibray,  178  Fed.  144. 

58185  Fed.  401. 

ssaSee  Prentis  v.  Cosmas,  196  Fed.  372,  where  the  departmental  decision 
that  an  act  committed  by  an  alien  involved  moral  turpitude  was  apparently 
upheld  as  final  by  the  circuit  court  of  appeals  for  the  7th  circuit. 


180  The  Exclusion  and  Expulsion  of  Aliens. 

where  an  alien  lawfully  domiciled  in  this  country,  leaves 
it  for  the  purpose  of  spending  a few  hours  in  foreign  con- 
tiguous territory  and  then  returns,  the  re-entry  cannot 
be  deemed  an  original  entry  for  the  purpose  of  deportation 
charges  based  on  the  alleged  commission  by  the  alien  of 
felonious  acts  committed  by  him  in  the  United  States 
after  original  entry,  and  before  he  left  this  country  for 
the  temporary  visit  to  the  contiguous  territory  whence  he 
returned.59 

D.  Anarchists. 

The  provision  as  to  anarchists  is  a re-enactment  of  the 
corresponding  provision  of  the  preceding  act  of  March  3, 
1903,  held  constitutional  by  the  Supreme  Court  in  the  case 
of  Turner  v.  Williams.60  In  that  case  it  was  contended 
that  the  act  of  1903  was  unconstitutional  in  that  it  vio- 
lated the  first,  fifth  and  sixth  articles  of  the  Amendments 
to  the  Constitution  and  of  Section  1 of  Article  3 thereof ; 
and  that  no  power  is  delegated  by  the  Constitution 
to  the  general  government  over  alien  friends  with 
reference  to  their  admission  into  the  United  States 
or  otherwise,  or  over  the  beliefs  of  citizens,  denizens,  so- 
journers, or  aliens,  or  over  the  freedom  of  speech  or  of  the 
press.  After  pointing  out  that  prior  cases  had  disposed  of 
the  specific  contentions  regarding  the  fifth  and  sixtji 
amendments  and  paragraph  1 of  article  3,  and  the  denial 
of  the  delegation  to  the  general  government  of  the  power 
to  enact  the  Act  of  March  3,  1903,  the  Court  said : “The 
argument  seems  to  be  that,  conceding  that  Congress  has 
the  right  to  shut  out  any  alien,  the  power,  nevertheless, 
does  not  extend  to  some  aliens,  and  that  if  the  act  includes 
all  alien  anarchists,  it  is  unconstitutional  because  some 
anarchists  are  merely  political  philosophers  whose  teach- 
ings are  beneficial  rather  than  otherwise ....  If  the  word 

5»Lewis  v.  Frick,  189  Fed.  146.  Reversed  by  the  Circuit  Court  of  Appeals, 
195  Fed.  693;  In  re  Saraceno,  182  Fed.  955. 

eoUnited  States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law  Ed. 
979. 


The  Existing  Immigration  Law.  181 

'-'anarchists”  should  be  interpreted  as  including  aliens 
whose  anarchistic  views  are  professed  as  those  of  political 
philosophers,  innocent  of  evil  intent,  it  would  follow  that 
Congress  was  of  the  opinion  that  the  tendency  of  the  gen- 
eral exploitation  of  such  views  is  so  dangerous  to  the  pub- 
lic weal  that  aliens  who  hold  and  advocate  them  would  be 
undesirable  additions  to  our  population,  whether  perma- 
nently or  temporarily,  whether  many  or  few;  and  in  the 
light  of  previous  decisions  the  act  in  this  aspect  would  not 
be  constitutional  as  applicable  to  any  alien  who  is  opposed 
to  all  organized  government.” 

Section  38  of  the  act  prohibits  entrance  into  the  United 
States  or  any  territory  or  any  place  subject  to  the  juris- 
diction thereof  to  anarchists;  and  further  provides  that 
any  person  who  assists  or  aids  such  aliens  to  enter,  or 
who  connives  or  conspires  with  any  person  or  persons  to 
allow,  procure  or  permit  any  such  persons  to  enter  other- 
wise than  provided  by  law  shall  be  punished  by  fine  or 
imprisonment  or  both.  It  is  worthy  of  note  that  this  sec- 
tion prohibits  any  “person”  who  professes  this  form  of 
belief  from  entering  the  United  States.  Section  2 specifi- 
cally excludes  aliens  who  are  anarchists.  If  the  use  of 
the  term  “persons”  was  to  include  therein  all  persons 
irrespective  of  nationality,  it  necessarily  includes  citizens 
of  the  United  States.  But  a great  justice  of  the  Supreme 
Court  of  the  United  States  has  held  that  the  deportation 
of  a citizen  of  the  United  States  amounts  to  banishment61 
and  that  no  citizen  can  be  banished  in  the  absence  of  a 
jury  trial.  It  is  thought  however,  that  the  use  of  the  word 
“enter”  should  be  given  great  weight  in  construing  the 
section,  and  should  be  taken  to  mean,  in  connection  with 
the  title  and  other  provisions  of  the  act,  entrance  into  the 
United  States  by  one  other  than  an  American  citizen  na- 
tive born  or  naturalized.  The  meaning  of  the  word 
“enter”  as  used  in  the  act  will  be  later  considered  in  con- 

61Mr.  Justice  Brewer  in  his  dissenting  opinion  in  the  case  of  United 
States  v.  Ju  Toy,  198  U.  S.  269,  49  Law  Ed.  1046  et  seq. 


182  The  Exclusion  and  Expulsion  of  Aliens. 


nection  with  the  discussion  of  the  rights  acquired  by 
aliens  through  the  fact  of  their  having  obtained  a domicile 
in  this  country.62 

E. 

“Polygamists,  or  persons  who  admit  their  belief  in  the 
practice  of  polygamy.” 

Section  2 of  the  preceding  act  prohibited  the  entrance 
of  polygamists  into  the  United  States,  whereas,  by  the 
present  act  mere  belief  in  the  system  duly  admitted  con- 
stitutes a bar  to  such  entrance.  Polygamists  were  like- 
wise excluded  by  the  Act  of  1891, 63  and  in  a decision  ren- 
dered under  that  law  upholding  the  deportation  of  the 
alien  niece  of  a naturalized  alien  who  had  lawfully  mar- 
ried her  in  Russia,  and  who  had  had  by  her  an  idiot  son, 
the  Court,  basing  its  excluding  decision  on  Wharton64  and 
Reinhold  Schmid65  cited  these  authorities  to  the  following 

effect:  “A  matrimonial  relation that  is  prohibited 

by  our  laws  cannot  be  tolerated  in  our  territory,  though 
it  was  entered  into  by  foreigners  before  they  visited  us. 
We  will,  therefore,  tolerate  no  polygamists  or  incestuous 
unions  of  foreigners  settling  within  our  limits.” 

The  court  further  cited  State  v.  Brown66  to  the  effect 
that  it  is  not  “material  that  the  marriage  was  celebrated 
in  a country  where  it  was  valid,  for  we  are  not  bound 
upon  principles  of  comity  to  permit  persons  to  violate  our 
criminal  laws,  adopted  in  the  interests  of  decency  and 
good  morals,  and  based  upon  principles  of  sound  public 
policy,  because  they  have  assumed,  in  another  state  or 
country,  where  it  was  lawful,  the  relation  which  led  to  the 
acts  prohibited  by  our  laws.”67 

It  is  to  be  remarked  that  the  excluding  decision  of  the 
Court  in  the  case  above  quoted  was  based  not  on  the 

62 Post,  p.  427. 

63Act  of  March  3,  1891,  26  Stat.  at  L.  1084. 

64 Wharton,  Conflict  of  Laws,  2d  Ed.  Par.  175. 

65See  Ibid. 

6647  Ohio  State  Rep.  102. 

67United  States  v.  Rodgers,  109  Fed.  886. 


The  Existing  Immigration  Law.  183 

ground  that  the  coming  to  the  United  States  of  two  aliens 
connected  by  the  relationship  shown  was  violative  of  any 
provision  of  the  act  or  of  any  of  the  laws  of  the  United 
States,  but  because  it  seemed  to  the  court  “impossible  to 
recognize  this  marriage  as  valid  in  Pennsylvania.”  Sec- 
tion 1994  of  the  Kevised  Statutes  of  the  United  States 
provides  that  any  woman  who  is  now  or  may  hereafter  be 
married  to  a citizen  of  the  United  States,  and  who  might 
herself  be  lawfully  naturalized,  shall  be  deemed  a citizen. 
On  the  one  hand  it  might  be  urged  that  being  a citizen  of 
the  United  States,  such  a woman  would  be  outside  the 
jurisdiction  of  the  Immigration  authorities;  and,  on  the 
other,  that  it  might  be  considered  doubtful,  to  say  the 
least,  whether  or  not  the  boon  of  citizenship  was  intended 
to  be  bestowed  by  Congress  on  one  claiming  it  merely  on 
the  strength  of  an  incestuous  relationship. 

F. 

“Prostitutes,  or  women  or  girls  coming  into  the  United 
States  for  the  purpose  of  prostitution  or  for  any  other  im- 
moral purpose;  persons  who  are  supported  by,  or  receive 
in  whole  or  in  part  the  proceeds  of  prostitution ; persons 
who  procure  or  attempt  to  bring  in  prostitutes,  or  women 
or  girls  for  the  purpose  of  prostitution,  or  for  any  other 
immoral  purpose.” 

The  Act  of  March  3,  1903  prohibited  the  entrance  of 
prostitutes  and  persons  who  attempt  to  bring  in  prosti- 
tutes, or  women  for  the  purposes  of  prostitution.  The 
present  act  excludes  in  addition  to  prostitutes,  women  or 
girls  coming  to  the  United  States  for  the  purpose  of  pros- 
titution, or  for  any  other  immoral  purpose.  Concubines 
were  held  not  to  be  included  within  the  last  mentioned 
class68  but  this  decision  was  reversed  by  the  Supreme 
Court  which  held  that  the  words  “for  any  immoral  pur- 

68United  States  v.  Bitty,  155  Fed.  938 ; but  where  an  alien  woman  entered 
this  country  in  good  faith  on  the  representations  made  to  her  by  a for- 
eigner residing  here  that  he  would  marry  her  on  her  arrival  and  later 
cohabited  with  him,  held,  that  she  did  not  enter  for  an  immoral  purpose. 
United  States  v.  Martin,  193  Fed.  795. 


184  The  Exclusion  and  Expulsion  of  Aliens. 


pose”  “show  beyond  question  that  Congress  had  in  view 
the  protection  of  society  against  another  class  of  alien 
women  than  those  who  might  be  brought  here  merely  for 
the  purposes  of  prostitution.”69  The  act  applies  to  Chi- 
nese prostitutes,  notwithstanding  that  Section  43  thereof 
provides  that  the  act  shall  not  be  deemed  to  repeal  the  ex- 
isting laws  relating  to  the  exclusion  of  Chinese  ;70  and  also 
to  prostitutes  who  landed  in  the  United  States  during  the 
three  year  period  provided  by  the  Act  of  190371  and  prior 
to  the  adoption  of  this  act.72 

The  act  not  only  excludes  prostitutes  and  women  or 
girls  coming  to  the  United  States  for  purposes  of  prostitu- 
tion or  for  some  other  immoral  purpose,  but  those  who 
procure  or  attempt  to  bring  such  women  in;  and  the 
amendatory  Act  of  March  26,  1910, 73  further  excludes  the 
admission  of  persons  who  are  supported  by  or  who  re- 
ceive in  whole  or  in  part  the  proceeds  of  prostitution. 

The  terms  “prostitution”  and  “immoral  purposes” 
would  seem,  in  spite  of  the  fact  that  the  Supreme  Court  in 
the  case  of  United  States  v.  Bitty74  found  it  necessary  to 
explain  that  an  alien  woman  who  came  to  this  country  as 
a concubine  of  a person  resident  here  came  for  an  immoral 
purpose,  to  be  of  such  common  understanding  that  no  defi- 
nition of  either  term  will  be  attempted  here.  It  suffices  to 
say  that  one  coming  to  the  United  States  for  the  purpose 
of  prostitution  must  be  shown  to  come  with  the  intent  of 
promiscuous  carnal  intercourse  for  a money  consideration. 

69United  States  v.  Bitty,  208  U.  S.  393,  52  Law  Ed.  543. 

™Looe  Shee  v.  North,  170  Fed.  566. 

^Section  3. 

7 zEx  parte  Durand,  160  Fed.  558,  170  Fed.  566,  supra. 

7336  Stat.  at  L.  263.  The  provision  that  the  persons  of  immoral  character 
therein  designated  may  be  deported  “in  the  manner  provided”  in  sections 
20  and  21  of  the  Act  of  February  20,  1907,  refers  only  to  the  method  of 
procedure  to  be  adopted  in  the  course  of  the  steps  leading  immediately  to 
deportation,  and  not  to  the  three  year  period  within  which  they  were  hitherto 
deportable.  Chomel  v.  United  States;  Brion  v.  same,  192  Fed.  117. 

7 *Supra. 


The  Existing  Immigration  Law. 


185 


In  the  absence  of  such  intent  she  does  not  come  here  for 
such  a purpose  and  is  not  therefore  to  be  excluded  on  that 
ground.75 

While  marriage  by  an  alien  woman  capable  of  naturali- 
zation under  the  law  to  an  American  citizen,  al- 
though the  ceremony  is  performed  while  she  is  held  for 
deportation  has  been  held  to  entitle  her  to  an  immediate 
discharge  on  habeas  corpus,76  a sham  marriage  contracted 
by  an  alien  prostitute  has  naturally  been  held  insufficient 
to  prevent  deportation  under  the  Chinese  exclusion  acts,77 
and  the  same  result  would  naturally  follow  in  deporta- 
tion proceedings  instituted  under  the  immigration  acts. 

The  effect  of  prior  domicile  in  the  United  States  on  the 
right  of  prostitutes  to  re-enter  the  country,  has  given  rise 
to  a difference  of  judicial  opinion,  the  weight  of  authority 
being  to  the  effect  that  prior  domicile  confers  no  such 
right.78  There  is  but  one  case  in  which  the  holding  is  to 
the  opposite  effect.  There  it  appeared  that  the  alien  en- 
tered the  United  States  lawfully  in  the  first  instance,  and 
lived  here  for  fifteen  years,  during  the  latter  part  of  which 
she  practised  prostitution,  and  then,  after  leaving  tem- 
porarily for  a visit  to  Panama,  returned  to  this  country 
in  January  1910,  where  she  was  arrested  under  the  Act  of 
February  20th,  1907  as  one  entering  the  United  States  for 
the  purposes  of  prostitution.  The  court  held  that  her 
right  to  remain  depended  on  the  provisions  of  section  3 
of  the  Act  of  February  20,  1907,  and  could  only  be  taken 
away  during  three  years  after  entry,  and  that  the  return 
did  not  constitute  entry.79  The  question  of  the  applica- 

75 In  re  Guayde,  112  Fed.  415. 

fsHopkins  v.  Fachant,  130  Fed.  839. 

77Wong  Heung  v.  Elliott,  179  Fed.  110;  Looe  Shee  v.  North,  170  Fed.  566. 

78 In  re  Hoffman,  179  Fed.  839;  United  States  v.  Villett,  173  Fed.  500; 
Ex  parte  Petterson,  166  Fed.  536. 

7»Redfern  v.  Halpert,  186  Fed.  150. 


186  The  Exclusion  and  Expulsion  of  Aliens. 

tion  of  the  immigration  act  to  domiciled  aliens  returning 
to  the  United  States,  is  considered  at  length  in  another 
chapter.80 

G. 

“Persons  hereinafter  called  contract  laborers,  who  have 
been  induced  or  solicited  to  migrate  to  this  country  by 
offers  or  promises  of  employment  or  in  consequence  of 
agreements,  oral,  written  or  printed,  express  or  implied, 
to  perform  labor  in  this  country  of  any  kind,  skilled  or 
unskilled  * * * provided  * * that  skilled  labor 

may  be  imported  if  labor  of  like  kind  unemployed  cannot 
be  found  in  this  country;  and  provided  further , That  the 
provisions  of  this  law  applicable  to  contract  labor  shall 
not  be  held  to  exclude  professional  actors,  artists,  lec- 
turers, singers,  ministers  of  any  religious  denomination, 
professors  for  colleges  or  seminaries,  persons  belonging 
to  any  recognized  learned  profession,  or  persons  employed 
strictly  as  personal  or  domestic  servants.” 

Unlike  the  Act  of  1903,  which  did  not  exclude  contract 
laborers81  but  prohibited  the  importation  of  aliens  under 
contract  labor,  this  act  expressly  prohibits  the  entrance  of 
such  laborers  into  the  United  States.  Section  2 of  the  Act 
of  1903  provided  “that  the  provisions  of  this  law  appli- 
cable to  contract  labor”  did  not  affect  the  exempted  per- 
sons classified  in  the  exempting  proviso  of  section  2 of  the 
present  act  quoted  above.  The  Act  of  1891  excludes 
“the  class  of  contract  laborers  excluded  by  the  Act  of 
February  26,  1885,”  and  in  its  fifth  section  amended  sec- 
tion 5 of  the  last  named  act  to  read  as  follows : 

“Nor  shall  the  provisions  of  this  act  apply  to  profes- 
sional actors,  artists,  lecturers,  or  singers,  nor  to  persons 
employed  strictly  as  personal  or  domestic  servants,  nor 
to  ministers  of  any  religious  denomination,  nor  persons 
belonging  to  any  recognized  profession,  nor  professors  for 
colleges  and  seminaries.” 

Neither  the  present  act  nor  any  of  its  predecessors  has 

soChapter  on  Status,  post , p.  427. 

siDavies  v.  Manolis,  179  Fed.  818. 


The  Existing  Immigration  Law. 


187 


contained  provisions  purporting  to  define  affirmatively 
what  constitutes  the  term  “laborer;”  so  that  with  one  ex- 
ception the  classes  exempted  from  the  operation  of  this 
act  are  identical  with  those  exempted  from  the  Act  of 
1885.  The  exception — if  it  is  in  fact  such — consists  in  the 
exempting  under  the  present  act  from  the  effects  thereof 
members  of  a “recognized  learned  profession,”  whereas 
the  Act  of  1885  uses  the  term  “recognized  profession.” 
Alien  “laborers”  are  therefore,  under  this  act  what  they 
were  under  the  act  of  1885  as  amended. 

Migration  a 'Necessary  Element. 

Unless  the  alien  laborer  migrates  to  the  United  States 
to  perform  the  labor  in  question  he  does  not  come  within 
the  operation  of  the  statute  ;82  thus,  the  employment  under 
contract  of  a Canadian  residing  in  Canada  who,  in  order 
to  do  his  work,  must  cross  the  border  daily  does  not  violate 
the  statute.83 

Contract  Laborer,  What  Constitutes. 

Prior  to  the  amendment  of  the  Act  of  1885  by  that  of 
1891,  the  Supreme  Court  of  the  United  States  held  that 
an  alien  minister  entering  the  United  States  under  con- 
tract with  a religious  society  here  was  not  a contract  la- 
borer under  the  act.84  Nor  is  a chemist  entering  to  take 
up  employment  on  a sugar  plantation85  nor  an  expert  win- 
dow draper86  nor  skilled  employees  of  foreign  exhibitors 

82United  States  v.  Craig,  28  Fed.  795. 

83United  States  v.  Michigan  Central  R.  R.  Co.,  48  Fed.  365. 

84Church  of  the  Holy  Trinity  v.  United  States,  143  U.  S.  457,  36  Law  Ed. 
226. 

ssUnited  States  v.  Laws,  163  U.  S.  256,  41  Law  Ed.  151;  nor  an  alien 
induced  to  come  to  this  country  by  promise  of  employment  as  a superintend- 
ent of  a lumbering  company  conditioned  on  his  being  a competent  woods- 
man, logger  and  mill  man  and  a first-class  mechanic,  provided  the  agreement 
does  not  require  him  to  perform  manual  labor,  27  Op.  Atty.  Gen.  383, 
1909;  nor  where  the  nature  of  the  employment  is  essentially  that  of  super- 
intendence; Teerthdass  v.  Pohoomul  Bros.,  15  Phil.  Rep.  605. 

seUnited  States  v.  Gay,  95  Fed.  226. 


188  The  Exclusion  and  Expulsion  of  Aliens. 


of  the  World’s  Columbian  Exposition.87  An  under  coach- 
man who  is  employed  strictly  as  a personal  or  domestic 
servant  is  not  a-  contract  laborer  ;88  nor  are  alien  sailors 
who,  although  not  within  the  exempted  classes  and  under 
contract  to  do  labor  in  the  United  States,  do  not  come  as 
immigrants  for  the  purpose  of  performing  that  labor.89  It 
has  been  held  that  an  alien  minor  who,  after  writing  to 
a distant  relative  in  the  United  States  to  know  if  the 
latter  would  give  him  employment  should  he  come  to  the 
United  States,  and  who  subsequently  came,  his  passage 
being  paid  by  his  father  abroad,  and  worked  for  a weekly 
sum  and  board  with  the  relative  aforesaid,  and  after- 
wards went  into  business  for  himself,  was  not  a contract 
laborer  within  the  terms  of  the  present  act.90  Nor  is  an 
alien  contract  laborer  excludable  under  the  present  act 
where  it  was  shown  that  he  entered  this  country  before  it 
went  into  effect  and  at  a time  when  the  Act  of  March  3, 
1903,  which,  unlike  its  predecessor  of  March  3,  189191  did 
not  exclude  contract  laborers,  was  in  force.92 

The  case  in  re  Ellis93  has  already  been  referred  to.94 
While  the  Circuit  Court  of  Appeals  held  in  that  case  that 
a foreign  chartered  accountant  entering  this  country  to 
do  professional  work  here  under  agreement  was  a contract 
laborer  within  the  terms  of  the  present  law  that  decision 
is,  for  reasons  already  given,  open  to  criticism  and,  it  is 
safe  to  say,  will  not  serve  as  a precedent  should  a similar 
state  of  facts  again  be  presented  for  judicial  determina- 
tion. 

8720  Op.  Atty.  Gen.  89,  1891. 

88 In  re  Howard,  63  Fed.  263. 

89United  States  v.  Burke,  99  Fed.  895. 

soBoties  y.  Davies,  173  Fed.  996. 

9i52  Fed.  873. 

92Davies  v.  Manolis,  179  Fed.  818. 

93 in  re  Ellis,  124  Fed.  637.  Case  dismissed,  200  U.  S.  622. 

**Ante,  p.  72.  The  Attorney  General  has  held  in  a comparatively  recent 
opinion  that  chartered  accountants  are  not  excludable  as  contract  laborers; 
and  see  as  to  alien  lithographic  artists,  26  Op.  Atty.  Gen.  284,  June,  1907. 


\ 

\ 

The  Existing  Immigration  Law.  1S9 

On  the  other  hand,  a foreign  milliner  does  not  come 
within  the  exempted  classes,  not  being  a professional  ar- 
tist;95 nor  a farmer  nor  a farm-hand  entering  the  United 
States  to  work  on  contract  on  the  theory  that  he  is  a 
domestic  servant,96  nor  are  alien  lace-makers  exempt 
from  the  excluding  provisions.97  Any  one  who,  upon  a 
promise  made  to  him  by  another  to  employ  him  on  his 
arrival  into  the  United  States  at  stipulated  wages  in  a 
definite  occupation,  the  promise  being  made  by  one  who 
advanced  him  money  for  his  passage  and  accompanied  him 
on  his  journey,  came  to  the  United  States,  went  to  work 
at  the  wages  stipulated,  and  continued  in  the  employment 
of  the  person  who  made  the  promise  and  the  advance  for 
a year,  is  a contract  laborer  within  the  terms  of  the  pres- 
ent act.98 

The  Contract. 

Although  the  alien  laborers  barred  by  the  act  are  called 
“contract  laborers/’  it  would  not  seem  that,  in  order  to 
render  them  subject  to  exclusion  or  deportation  under 
section  2,  they  must  come  actually  under  a prior  con- 
tract;99 an  element  in  the  absence  of  which,  according  to 
decisions  under  the  Act  of  1885,  the  law  could  not  be 
violated.100  Under  the  third  section  of  the  Act  of  March 
3,  1891,  any  assurance  of  probable  employment,  definite  as 
to  the  time,  place,  and  rate  of  wages,  constituted  a promise 

ssUnited  States  v.  Thompson,  41  Feu.  28. 

reunited  States  v.  Parsons,  130  Fed.  681. 

9723  Op.  Atty.  Gen.  381,  1901. 

98United  States  v.  Redfern,  180  Fed.  500. 

99lt  was  held  in  the  case  of  Fornow  v.  Hoffmeister,  6 Phil.  Rep.  33,  that 
a contract  of  labor  executed  by  the  parties  in  Manila  in  January,  1901,  and 
by  them  admitted  to  be  true,  cannot  be  considered  a violation  of  the  Con- 
tract Labor  Law  of  1885  extended  to  the  Philippine  Islands  in  1899,  where 
the  facts  fail  to  show  that  the  contract  was  made  in  pursuance  of  a prior 
agreement  entered  into  by  a resident  of  the  Philippines  and  a person  in  a 
foreign  country. 

looxjnited  States  v.  Edgar,  48  Fed.  91;  Moller  v.  United  States,  57  Fed. 

490. 


190  The  Exclusion  and  Expulsion  of  Aliens. 


cf  employment,1  and  any  alien  coming  in  response  to  such 
promise  through  advertisements  printed  and  published  in 
any  foreign  country  was  treated  by  the  terms  of  the  sec- 
tion as  coming  under  a contract.  In  the  present  act  the 
word  “contract”  is  not  used  except  by  way  of  designating 
a certain  class  of  alien  laborers;  and  the  only  definition 
classifying  the  laborers  whose  entrance  is  prohibited  ex- 
cludes such  aliens  as  “have  been  induced  or  solicited  to 
“migrate  to  this  country  by  offers  or  promises  of  employ- 
ment, or  in  consequence  of  agreements,  oral,  written  or 
“printed,  express  or  implied,  to  perform  labor  in  this 
“country.” 

To  constitute  a contract  laborer,  as  the  term  is  used 
and  defined  in  the  present  act,  two  facts  must  be  shown 
to  exist:  First,  that  the  alien  has  migrated  to  the  United 
States,  and,  second,  that  the  migration  is  the  result  of  an 
offer  or  promise  of  employment  in  the  United  States,  or 
of  an  agreement  to  perform  labor  there.  There  seems  to 
be  no  good  reason  why  Congress  should  not,  if  it  so 
deemed  wise,  prohibit  this  class  of  aliens  from  coming  to 
the  United  States  to  perform  labor  in  response  to  an 
offer  too  broad  or  too  general  ordinarily  to  give  rise  to  a 
contractual  obligation  on  the  part  of  the  person  submit- 
ting it,  and  this,  it  appears,  is  just  what  Congress  has 
done.  The  same  may  be  said  with  regard  to  migration  “in 
consequence  of  agreements;”  that  is,  that  the  agreement 
need  not  necessarily  contain  all  the  requisites  of  a formal 
contract.  Section  6,  to  be  considered  in  later  chapter, 
would  seem  to  support  this  view  where  it  provides  that 
any  alien  coming  to  this  country  in  consequence  of  ad- 
vertisements printed  in  a foreign  country  promising  em- 
ployment “shall  be  treated  as  coming  under  promise  or 
“agreement  as  contemplated  in  section  2.”  The  coming 
United  States  v.  Baltic  Mills  Co.,  124  Fed.  38. 


The  Existing  Immigration  Law. 


191 


“under  contract”  is  no  longer  essential  to  a violation  of 
the  act.2 

H. 

“ * * * those  who  have  been  within  one  year  from 

the  date  of  application  for  admission  to  the  United  States, 
deported  as  having  been  induced  or  solicited  to  migrate  as 
above  described;  any  person  whose  ticket  or  passage  is 
paid  for  with  the  money  of  another,  or  is  assisted  by  others 
to  come,  unless  it  is  affirmatively  and  satisfactorily  shown 
that  such  person  does  not  belong  to  one  of  the  foregoing 
excluded  classes,  and  that  such  ticket  or  passage  was  not 
paid  for  by  any  corporation,  association,  society,  munici- 
pality, or  foreign  government  either  directly  or  indirectly ; 
* * 

Under  the  Act  of  1903  all  that  aliens  whose  passage  was 
paid  for  by  another  had  to  show  was  that  they  did  not  be- 
long to  the  excluded  classes;  but  by  the  terms  of  the 
present  section  they  must  assume  the  additional  obliga- 
tion of  showing  that  their  ticket  or  passage  was  not  pro- 
vided by  the  various  associations  designated  or  by  any 
foreign  power.  This  prohibition  does  not,  however,  ex- 
tend to  the  ticket  or  passage  of  aliens  in  immediate  or 
continuous  transit  through  the  United  States  to  foreign 
contiguous  territory. 

I. 

“*  * * all  children  under  sixteen  years  of  age  unac- 

companied by  one  or  both  of  their  parents,  at  the  discretion 
of  the  Secretary  of  Commerce  and  Labor,  or  under  such 
regulations  as  he  may  from  time  to  time  prescribe ; * *” 

This  provision  appears  here  for  the  first  time  in  the 

2O11  this  point  Attorney  General  Bonaparte  expressed  himself  as  follows: 
“The  words  ‘ promise  of  employment’  are  evidently  here  used  in  a broad 
and  somewhat  loose  sense,  meaning,  not  merely  an  offer  of  employment  which, 
by  acceptance  on  the  part  of  any  alien  coming  within  its  terms,  would 
create  a contract  enforceable  against  some  definite  person  or  persons,  but 
any  form  of  words  which  might  be  reasonably  understood  as  holding  out 
to  a possible  immigrant  the  prospect  of  assured  employment,  although  they 
might  not  import  any  legal  responsibility  on  the  part  of  anyone.”  26  Op. 
Atty.  Gen.  199,  205,  March,  1907. 


I 


192  The  Exclusion  and  Expulsion  of  Aliens. 

immigration  legislation  of  this  country.  The  following 
rule  has  been  adopted  by  the  Department  of  Commerce 
and  Labor  for  the  purpose  of  its  enforcement : 

All  children  under  16  unaccompanied  by  either  parent, 
neither  parent  being  in  the  United  States,  shall  be  held 
for  special  inquiry.  The  board  shall  exclude  them  as  a 
matter  of  course  unless  it  finds  (1)  that  they  are  strong 
and  healthy,  (2)  that  while  abroad  they  have  not  been  the 
objects  of  public  charity,  (3)  that  they  are  going  to  close 
relatives  who  are  able  and  willing  to  support  and  prop- 
erly care  for  them,  (4)  that  it  is  the  intention  of  such 
relatives  to  send  them  to  school  until  they  are  16,  and  (5) 
that  they  will  not  be  put  at  work  unsuited  to  their  years. 
Where  the  board  finds  these  facts  to  exist  it  shall  so  re- 
port orally  or  in  writing  to  the  officer  in  charge  and  defer 
final  action  until  such  officer  has  personally  inspected  the 
child.  If,  in  his  judgment,  the  child  should  be  admitted, 
he  shall  so  state  to  the  board  (this  fact  being  entered  of 
1-ecord),  which  may  thereupon  admit.  Where,  in  the 
opinion  of  such  officer,  the  child  is  not  clearly  admissible, 
the  board  shall  exclude  and  give  notice  of  the  right  of 
appeal.  If  thereafter  an  appeal  be  filed,  the  case  shall  be 
forwarded  with  the  recommendation  either  for  (1)  ad- 
mission outright,  ($)  admission  on  bond,  or  (5)  ex- 
clusion. 

One  of  the  purposes  of  this  rule  is  to  insure  that  the 
case  of  each  child  under  sixteen  unaccompanied  shall  re- 
ceive the  attention  of  the  officer  in  charge  and  thus  bring 
about  the  application  of  substantially  uniform  standards 
as  to  the  admission  of  those  cases  which  do  not  reach  the 
department  as  well  as  prompt  admission  where  admission 
ought  obviously  to  occur.3 

J. 

“ * * that  skilled  labor  may  be  imported  if  labor  of 

3Note  p.  24;  Immigration  Eules. 


The  Existing  Immigration  Law. 


193 


like  kind  unemployed  cannot  be  found  in  this  country; 

The  provision  found  in  the  corresponding  Act  of  1903 
was  introduced  originally  in  the  Act  of  February  26,  1885.4 
It  has  been  held,  under  the  latter  act,  that  while  hat  trim- 
ming jould  not  be  considered  a new  industry,5  the  manu- 
facture of  French  silk  stockings  could  be  where  it  had 
been  shown  that  there  had  been  manufactured  here  stock- 
ings whereof  the  feet  were  the  same  as  those  of  French 
silk  stockings,  but  the  legs  were  different  and  made  by 
different  machines.6 

Seamen. 

It  was  held  in  an  early  case  that,  generally  speaking, 
persons  whose  trade  was  that  of  following  the  sea  are  not, 
when  they  arrive  at  a United  States  port,  in  the  regular 
course  of  their  employment,  to  be  considered  as  immi- 
grants.7 The  United  States  Supreme  Court,  in  deciding 
the  case  of  Taylor  v.  United  States,8  held  that  the  act  did 
not  intend  to  prohibit  alien  sailors  from  going  ashore 
from  foreign  vessels  touching  at  ports  of  the  United 
States.9  In  recognition  of  the  principle  announced  in  the 
Supreme  Court  decision  and  in  order  that  the  exemption 
made  in  favor  of  alien  seamen  shall  not  result  in  the 
entry  into  the  United  States  of  aliens  of  the  classes  ex- 
cluded by  law,  the  following  rule  has  been  promulgated 
by  the  Department  of  Commerce  and  Labor  :9a 

(a)  A seaman  is  any  person  employed  to  serve  on 
board  a vessel,  whose  employment  is  necessary  to  com- 

4Sec.  5,  23  Stat.  at  L.  333,  26  Stat.  at  L.  1085,  27  Stat.  at  L.  570. 

sUnited  States  v.  Thompson,  41  Fed.  28. 

eUnited  States  v.  MeCallum,  44  Fed.  745,  and  see  26  Op.  Atty.  Gen.  284, 

June,  1907;  see  also  United  States  v.  Candelario,  not  yet  reported,  

Fed.  . 

“^United  States  v.  Sandrey,  48  Fed.  550. 

sUnited  States  v.  Taylor,  207  U.  S.  120,  52  Law  Ed.  130. 

923  Op.  Atty.  Gen.  521,  1901. 

9aBule  10,  Immigration  Rules. 


194  The  Exclusion  and  Expulsion  of  Aliens. 

merce  and  navigation  and  whose  name  appears  on  the 
ship’s  articles. 

(b)  A person  whose  employment  on  board  a vessel  is 
not  necessary  to  commerce  and  navigation,  namely,  a per- 
son who  is  insane,  an  idiot,  an  imbecile,  an  epileptic,  or 
a person  afflicted  with  tuberculosis  or  with  a loathsome  or 
dangerous  contagious  disease,  is  not  a seaman  within  the 
meaning  of  this  rule. 

(c)  Seamen  who  desert  their  ship  shall,  until  the  con- 
trary is  shown,  be  deemed  to  have  abandoned  their  calling 
and  to  be  no  longer  seamen  within  the  meaning  of  this 
rule. 

(d)  Seamen  whose  employment  terminates  at  a port  of 
the  United  States  and  seamen  who  are  discharged  in  a 
port  of  the  United  States  are  not  to  be  regarded  as  seamen 
within  the  meaning  of  this  rule,  unless  it  appears  to  the 
satisfaction  of  the  examining  immigration  officer  that 
they  intend  to  reship  within  a reasonable  time  on  a vessel 
bound  to  a foreign  port. 

The  reason  given  in  the  Taylor  case  why  an  alien  sailor 
landing  in  the  United  States  and  availing  himself  of  the 
right  of  shore  leave  granted  by  the  master,  or  in  the  ordi- 
nary course  of  his  duties  as  a member  of  the  crew,  does  not 
come  within  the  contemplation  of  the  act,  is  because  “it 
is  necessary  to  commerce,  as  all  admit,  that  sailors  should 
go  ashore,  and  no  one  believes  that  the  statute  intended 
altogether  to  prohibit  their  doing  so.  The  contrary  al- 
ways has  been  understood  by  the  earlier  acts,  in  judicial 
decisions  and  executive  practice.” 

The  provision,  in  subdivision  1 of  rule  10  to  the  effect 
that  alien  seamen  afflicted  with  mental  or  physical  dis- 
abilities which,  were  they  not  seamen,  would  bring  them 
within  section  2 of  the  act  are  persons  whose  employment 
on  board  vessels  is  not  necessary  to  commerce  and  navi- 
gation, and  are,  accordingly,  not  seamen  within  the 
meaning  of  the  rule,  would  not  seem  to  be  authorized  by 


The  Existing  Immigration  Law. 


195 


any  interpretation  of  the  act.  The  immigration  acts  have 
consistently  been  held  by  the  courts  not  to  be  directed 
against  the  landing  of  alien  seamen  in  the  course  of  their 
duty  or  on  shore  leave.  The  masters  of  the  vessels  from 
which  they  land  must  be — in  the  absence  of  legislation  by 
Congress  to  the  contrary — the  sole  judges  of  whether  or 
not  their  employment  on  board  those  vessels  is  necessary 
to  the  commerce  and  navigation  in  which  such  vessels 
participate,  whether  those  acts  in  which  such  seamen  take 
a part  are  performed  on  board  the  vessels  themselves  or 
on  land  at  the  various  ports  at  which  they  enter.  It  is 
within  the  power  of  Congress  to  prohibit,  by  means  of 
immigration  or  other  legislation,  the  landing  of  alien  sea- 
men in  the  discharge  of  their  ordinary  duties  on  any 
ground  which  may  seem  to  it  sufficient,  whether  such 
ground  be  mental,  moral,  or  physical  infirmity ; but  as  yet 
Congress  has  not  seen  fit  to  exercise  that  power.  It  is 
therefore  difficult  to  perceive  what  authority  is  vested  in 
the  Secretary  of  Commerce  and  Labor  to  decide,  first,  that 
an  alien  seaman,  because  consumptive  or  feeble  minded,  is 
not  a seaman,  although  a part  of  the  crew  of  a vessel  flying 
a foreign  flag,  or,  second,  to  exercise  or  attempt  to  exercise 
with  regard  to  such  seaman  a power  and  authority  which 
Congress  has  not,  as  yet,  seen  fit  to  exercise. 

Deserting  Seamen. 

In  rendering  the  decision  in  the  Taylor  case10  the  court 
went  no  further  than  to  state  that  the  act  of  1903  could 
not  be  construed  to  cover  the  ordinary  case  of  a seamen 
going  ashore.  These  words  must  be  taken  in  their  ordi- 
nary sense.  The  court  did  not  say  that  a deserting  alien 
seaman  did  not  come  within  the  operation  of  the  act;  it 
did  not  pass  on  that  point,  but  contented  itself  with  hold- 
ing that  section  18  was  not  intended  to  punish  the  master 
of  a vessel  “for  the  ordinary  case  of  a sailor  deserting 
while  on  shore  leave.”  And  the  court  was  further  of  the 

lOTaylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


196  The  Exclusion  and  Expulsion  of  Aliens. 


opinion  that  “of  course  it  is  possible  for  a master  un- 
lawfully to  permit  an  alien  to  land  even  if  the  alien  is  a 
sailor.”  It  follows  that  an  alien  may  go  ashore  in  viola- 
tion of  the  immigration  act  even  though  a seaman,  as  long 
as  such  going  ashore  does  not  constitute  that  landing 
“necessary  to  commerce”  which  the  act  does  not  intend  to 
prohibit. 

In  order,  then,  to  give  the  department  jurisdiction 
under  the  act  in  such  cases,  it  seems  unnecessary  to  in- 
dulge in  the  somewhat  violent  presumption  that  an  alien 
seaman  who  has  deserted  from  his  vessel  is  no  longer  a 
seaman;11  for  as  a matter  of  common  knowledge  the  mo- 
tive of  desertion  is  ordinarily  to  leave  the  particular  vessel 
on  which  the  deserter  was  signed  in  order  to  ship  on  an- 
other— not  to  give  up  earning  a living  at  the  only  trade  the 
ordinary  seaman  knows.  The  Department’s  jurisdiction 
in  such  case  would  seem  to  be  established  by  the  fact  that 
the  alien  seaman’s  landing,  or  at  least  his  presence  on 
shore  in  consequence  of  such  landing,  is  not  the  result 
of  that  “going  on  shore”  necessary  to  commerce  not  pro- 
hibited by  this  or  earlier  acts. 

Seamen  engaged  in  coastwise  trade. 

Rule  10  provides  that  alien  seamen  employed  on  vessels 
engaged  in  coastwise  trade  of  the  United  States  are  aliens 
within  the  meaning  of  the  immigration  act  and  subject  to 
Its  provisions. 

This  regulation  is  supported  by  two  opinions  of  the 
solicitor  of  the  Department  of  Commerce  and  Labor  of 
June  14,  and  September  15,  1907.  The  latter  is  simply 
to  the  effect  that  the  employment  of  Chinese  seamen 
by  a transportation  company  engaged  primarily  in 
foreign  trade,  but  also  at  times  and  incidentally  thereto 
in  the  coastwise  trade,  constitutes  no  violation  of 
the  immigration  law.  The  conclusion  reached  in  the 

uSubdi vision  1(c),  Rule  10.  , 


The  Existing  Immigration  Law. 


197 


opinion  of  June  14  seems  to  be  based  on  sound  prin- 
ciple and  a sane  interpretation  of  the  law.  It  is  to  the 
effect  that  aliens  cannot  be  employed  upon  American  ves- 
sels plying  the  coastwise  trade  without  violating  the  act 
in  question.  It  seems  plain  that  the  fact  that  the  labor 
which  the  alien  agrees  and  is  employed  to  perform  is  to  be 
done  on  board  American  ships  and  within  the  territorial 
waters  of  the  United  States  in  no  way  tends  to  lessen  the 
mischief  brought  about  by  the  presence  in  this  country  of 
foreign  contract  laborers  which  it  was  the  very  purpose  of 
the  act  to  avoid.  But  even  if  this  cannot  be  conceded  it 
must  be  admitted  that  to  permit  the  presence  of  aliens 
engaged  in  vessels  which  necessarily  spend  a great  part 
of  their  time  at  American  docks  would  be  no  more  or  less 
than  an  invitation  to  undesirable  foreigners  of  all  kinds 
to  assume  temporarily  the  character  of  mariners  for  the 
sole  purpose  of  seizing  the  many  opportunities  which 
would  be  thus  afforded  them  for  entering  the  country  in 
violation  of  the  laws  enacted  to  exclude  them.  The  spirit 
of  the  Taylor  decision  would  seem  to  be  that  foreign  sea- 
men engaged  in  foreign  commerce  should  in  the  natural 
pursuit  of  their  calling,  be  allowed  to  land  only  on  the 
assumption  that  such  landing  is  a necessary  incident  to 
their  employment  on  a vessel  engaged  in  such  commerce, 
or  to  their  intended  embarkation  on  some  other  ship  en- 
gaged in  foreign  trade;  that  purely  by  virtue  of  this 
assumption  their  presence  in  the  United  States  jurisdic- 
tion was  and  is  necessarily  of  the  briefest.  It  is  obvious 
that  like  considerations  cannot  apply  to  a foreign  sailor 
engaged  in  the  coastwise  trade  whose  stay,  by  the  very 
fact  of  his  employment  is  permanent  as  long  as  that  par- 
ticular vocation  lasts.  In  addition  to  those  provisions 
already  cited  on  this  subject,  the  following  Departmental 
rules  are  in  force : 

Seamen  engaged  in  foreign  trade. — Subject  to  the  fore- 
going limitations  and  restrictions,  alien  seamen  employed 


198  The  Exclusion  and  Expulsion  of  Aliens. 

on  vessels  plying  between  foreign  ports  and  ports  of  the 
United  States  may,  without  regard  to  the  provisions  of 
the  immigration  law,  land  in  the  United  States  either  on 
shore  leave  or  on  business  of  the  vessel,  or  for  any  purpose 
incident  to  their  calling,  including  for  the  purpose  of  re- 
shipping on  another  vessel  bound  to  a foreign  port  as  soon 
as  practicable. 

Seamen  found  in  United  States  otherwise  engaged. — 
Aliens,  though  landing  in  the  United  States  as  seamen,  if 
found  thereafter  engaged  in  any  occupation  not  connected 
with  the  business  of  a vessel  to  which  they  are  attached,  or 
if  found  to  be  public  charges,  shall  be  treated  as  other 
aliens  are  treated  and  shall  be  liable  to  deportation  in 
like  manner  and  for  like  causes. 

Procedure  and  examination  of  seamen. — Immigration 
officers  shall  inspect  those  claiming  to  be  alien  seamen  to 
such  extent  only  as  may  be  necessary  to  determine 
whether  or  not  they  are  and  intend  to  remain  such  and  to 
prevent  any  violation  of  this  rule.  Those  found  not  to  be 
bona  fide  seamen  (including  insane,  idiots,  imbeciles,  epi- 
leptics, or  persons  afflicted  with  tuberculosis  or  with  a 
loathsome  or  dangerous  contagious  disease)  and  those 
who  intend  to  abandon  their  calling  shall  be  inspected  and 
dealt  with  in  the  same  manner  as  are  other  aliens.  This 
includes  the  requirement  that  masters,  etc.,  shall,  when  so 
ordered,  prevent  the  landing  of  all  alien  ship’s  employees 
designated  by  the  immigration  authorities  as  inadmissible 
under  the  law  and  the  terms  of  this  rule. 

Presumption  against  vessel. — A master,  owner,  or  con- 
signee of  any  vessel  who  shall  allow  an  alien  seaman 
whose  employment  terminates  at  a port  of  the  United 
States,  to  land  without  giving  adequate  previous  notice  to 
the  immigration  officers,  or  who  shall  pay  off  or  discharge 
an  alien  seaman  at  such  port  or  allow  the  removal  of  his 
personal  effects  from  the  vessel  without  such  notice,  shall 


The  Existing  Immigration  Law. 


199 


be  presumed  to  have  negligently  failed  to  prevent  the  land- 
ing of  such  alien  members  of  the  crew  within  the  meaning 
of  section  18. 

When  examination  of  crew  of  vessel  may  be  dispensed 
with. — The  local  immigration  authorities  may  dispense 
with  the  inspection  of  alien  seamen  where  the  master, 
owner,  agent,  or  consignee  of  any  vessel  engaged  in  the 
foreign  trade  of  the  United  States  shall  give  satisfactory 
assurance  to  the  Secretary  of  Commerce  and  Labor  that 
he  will  comply  with  the  following  conditions,  to  wit : 

(a)  To  enforce  at  its  foreign  port  of  departure  a rigid 
medical  examination  of  aliens  seeking  employment  on 
such  vessel  which  will  insure  the  rejection  of  any  and  all 
applicants  suffering  from  any  mental  or  physical  affliction 
which  would  make  them  inadmissible  to  the  United  States 
under  section  2 ; 

(b)  To  notify  the  immigration  authorities  of  the  names 
of  all  seamen  not  employed  or  articled  for  the  return  voy- 
age from  the  United  States  and  the  names  of  all  those  to 
be  discharged  in  due  season  to  permit  the  inspection  and 
examination  of  such  aliens  under  the  provisions  of  the 
immigration  act; 

'(c)  To  enforce  in  the  ports  of  the  United  States  regu- 
lations on  the  subject  of  shore  leave  which  will  prevent  as 
far  as  possible  the  permanent  landing  of  alien  members  of 
the  crew  before  inspection  by  the  immigration  authorities, 
and  to  furnish  the  immigration  authorities  with  the  names 
of  aliens  employed  on  their  vessels  of  the  bona  tides  of 
whose  intention  to  follow  the  sea  they  have  any  reason  to 
doubt,  and  to  afford  opportunity  for  the  inspection  of 
such  aliens ; and,  except  by  express  permission  of  an  immi- 
gration officer,  to  refuse  shore  leave  and  to  prevent  the 
landing  of  alien  members  of  the  crew  who  are  insane, 
idiots,  imbeciles,  epileptics,  or  persons  afflicted  with  tu- 
berculosis or  with  a loathsome  or  dangerous  contagious 
disease ; and 


200  The  Exclusion  and  Expulsion  of  Aliens. 

(d)  To  notify  promptly  the  local  immigration  authori- 
ties of  the  names  and  description  of  seamen  who  desert 
the  vessel  at  any  port  of  the  United  States  and  to  furnish 
any  other  information  obtainable  that  would  aid  in  the 
apprehension  of  such  deserters. 

Presumptions  in  favor  of  vessel. — Where  the  Secretary 
is  satisfied  that  all  the  conditions  of  subdivision  7 hereof 
have  been  faithfully  complied  with,  the  master,  agent, 
owner,  or  consignee  of  the  vessel  shall  be  deemed  to  have 
provided  a competent  medical  examination  of  the  vessel’s 
crew  at  the  time  of  foreign  embarkation  within  the  mean- 
ing of  section  9 of  the  immigration  act,  and  will  be  deemed 
to  have  taken  reasonable  precautions  to  prevent  the  land- 
ing of  alien  members  of  the  crew  within  the  meaning  of 
section  18  of  said  act. 

Disabled  seamen. — A disabled  alien  seaman,  who  never- 
theless does  not  intend  to  relinquish  his  calling  but  whom 
the  master  of  the  vessel  is  obliged  under  the  navigation 
laws  of  the  country  to  which  the  vessel  belongs  to  return 
to  the  country  where  he  embarked,  may,  under  such  regu- 
lations as  the  officer  in  charge  deems  proper  to  carry  out 
the  purposes  of  this  subdivision,  pass  through  the  United 
States  in  transit  to  such  country  by  the  most  expeditious 
and  direct  route.  Where  he  is  suffering  from  a loathsome 
or  dangerous  contagious  disease,  or  with  tuberculosis,  or 
from  a mental  disability,  or  is  in  such  physical  or  mental 
condition  as  to  render  him  a person  likely  to  become  a 
public  charge,  the  master  must  make  arrangements  for 
his  proper  care  while  in  transit  and  furnish  a sum  of 
money  sufficient  to  defray  the  expenses  thereof.  These 
provisions  are  made  in  the  interest  of  trade  and  because 
of  the  peculiar  position  occupied  by  seamen  under  prin- 
ciples of  international  comity;  and  in  all  cases  to  which 
they  apply  the  immigration  officials  shall  confer  not  only 
with  the  master  but  with  the  consular  representative  of 
the  country  to  which  the  vessel  belongs. 


The  Existing  Immigration  Law. 


201 


Japanese  and  Korean  Laborers. 

Section  1 of  the  act  provides  that  whenever  the  Presi- 
dent shall  be  satisfied  that  passports  issued  by  any  foreign 
government  to  its  citizens  to  go  to  any  country  other  than 
the  United  States,  or  to  any  insular  possession  of  the 
United  States,  or  to  the  Canal  Zone,  are  being  used  for  the 
purpose  of  enabling  the  holders  to  come  to  the  continental 
territory  of  the  United  States  to  the  detriment  of  labor 
conditions  therein,  entrance  to  the  United  States  may 
be  refused  such  aliens  coming  from  such  foreign  country 
or  from  the  Canal  Zone,  or  insular  possessions  of  the 
United  States.  In  the  exercise  of  the  authority  conferred 
by  this  section  the  President  issued,  on  March  14,  1907, 
an  executive  order,  refusing  Japanese  and  Korean  labor- 
ers, skilled  and  unskilled,  who  have  received  passports 
to  go  to  Mexico,  Canada,  or  Hawaii,  and  come  therefrom, 
permission  to  enter  the  continental  territory  of  the  United 
States.  The  Secretary  of  Commerce  and  Labor  was  fur- 
ther directed  by  the  terms  of  the  order  to  take  such  meas- 
ures and  to  make  and  enforce  such  rules  and  regulations 
as  may  be  necessary  to  carry  this  order  into  effect. 

The  President’s  proclamation  together  with  the  depart- 
mental regulations  on  this  subject  appear  in  Rule  11  of 
the  immigration  rules : 

President’s  proclamation. — The  President’s  proclama- 
tion on  this  subject,  issued  March  14,  1907,  reads  as  fol- 
lows : 

Whereas,  by  the  act,  entitled  “An  act  to  regulate  the  im- 
migration of  aliens  into  the  United  States,”  approved  Feb- 
ruary 20,  1907,  whenever  the  President  is  satisfied  that 
passports  issued  by  any  foreign  government  to  its  citizens 
to  go  to  any  country  other  than  the  United  States  or  to 
any  insular  possession  of  the  United  States  or  to  the  Canal 
Zone,  are  being  used  for  the  purpose  of  enabling  the  hold- 
ers to  come  to  the  continental  territory  of  the  United 
States  to  the  detriment  of  labor  conditions  therein,  it  is 
made  the  duty  of  the  President  to  refuse  to  permit  such 
citizens  of  the  country  issuing  such  passports  to  enter  the 


202  The  Exclusion  and  Expulsion  of  Aliens. 


continental  territory  of  tlie  United  States  from  such  coun- 
try or  from  such  insular  possession  or  from  the  Canal 
Zone; 

And  Whereas,  upon  sufficient  evidence  produced  before 
me  by  the  Department  of  Commerce  and  Labor,  I am  satis- 
fied that  passports  issued  by  the  Government  of  Japan 
to  citizens  of  that  country  or  Korea  and  who  are  laborers, 
skilled  or  unskilled,  to  go  to  Mexico,  to  Canada,  and  to 
Hawaii,  are  being  used  for  the  purpose  of  enabling  the 
holders  thereof  to  come  to  the  continental  territory  of 
the  United  States  to  the  detriment  of  labor  conditions 
therein ; 

I hereby  order  that  such  citizens  of  Japan  or  Korea,  to 
wit:  Japanese  or  Korean  laborers,  skilled  and  unskilled, 
who  have  received  passports  to  go  to  Mexico,  Canada,  or 
Hawaii,  and  come  therefrom,  be  refused  permission  to 
enter  the  continental  territory  of  the  United  States. 

It  is  further  ordered  that  the  Secretary  of  Commerce 
and  Labor  be,  and  he  hereby  is,  directed  to  take,  through 
the  Bureau  of  Immigration  and  Naturalization,  such  meas- 
ures and  to  make  and  enforce  such  rules  and  regulations 
as  may  be  necessary  to  carry  this  order  into  effect. 

Effect  of  proclamation. — The  proclamation  requires  that 
Japanese  and  Korean  laborers,  skilled  or  unskilled,  who 
present  at  a continental  port  a passport  entitling  them 
only  to  admission  to  Mexico,  Canada,  or  Hawaii,  shall  be 
rejected.  It  does  not  in  any  particular  relieve  Japanese 
and  Korean  aliens  from  examination  under  the  general 
provisions  of  the  law. 

Rejection  or  admission  as  affected  by  passport. — If  a 
Japanese  or  Korean  laborer  applies  for  admission  and  pre- 
sents no  passport,  it  shall  be  presumed  ( 1 ) that  he  did  not 
possess  when  he  departed  from  Japan  or  Korea  a passport 
entitling  him  to  come  to  the  United  States,  and  (2)  that  he 
did  possess  at  that  time  a passport  limited  to  Mexico, 
Canada,  or  Hawaii.  If  he  presents  a passport  entitling 
him  to  enter  the  United  States  or  not  limited  to  Mexico, 
Canada,  or  Hawaii,  he  shall  be  admitted,  unless  he  belongs 
to  one  of  the  classes  excluded  by  the  general  provisions  of 
the  law.  If  he  presents  a passport  limited  to  Mexico,  Can- 


The  Existing  Immigration  Law.  203 

ada,  or  Hawaii,  but  claims  that  he  is  not  a laborer,  skilled 
or  unskilled,  proof  of  such  claim  shall  be  required. 

Right  of  appeal,  etc. — All  Japanese  or  Korean  laborers 
excluded  under  this  rule  shall  be  advised  not  only  of  their 
right  of  appeal  where  one  lies,  but  also  that  they  may  com- 
municate by  telegraph  or  otherwise  with  any  diplomatic  or 
consular  officer  of  their  government,  and  they  shall  be  af- 
forded opportunity  for  doing  so. 

Definition  of  term  laborer. — For  practical,  administra- 
tive purposes,  the  term  “laborer,  skilled  or  unskilled,” 
within  the  meaning  of  the  Executive  order  of  March  14, 
1907,  shall  be  taken  to  refer  primarily  to  persons  whose 
work  is  essentially  physical,  or,  at  least,  manual,  as 
farm  laborers,  street  laborers,  factory  hands,  contractors’ 
men,  stablemen,  freight  handlers,  stevedores,  miners,  and 
the  like;  and  to  persons  whose  work  is  less  physical,  but 
still  manual,  and  who  may  be  highly  skilled,  as  carpenters, 
stonemasons,  tile  setters,  painters,  blacksmiths,  mechan- 
ics, tailors,  printers,  and  the  like;  but  shall  not  be  taken 
to  refer  to  persons  whose  work  is  neither  distinctively 
manual  nor  mechanical,  but  rather  professional,  artistic, 
mercantile,  or  clerical,  as  pharmacists,  draftsmen,  pho- 
tographers, designers,  salesmen,  bookkeepers,  stenograph- 
ers, copyists,  and  the  like. 

Passports  to  be  indorsed. — Passports  presented  by  Jap- 
anese and  Koreans  shall  be  plainly  indorsed,  in  indelible 
ink,  by  the  officer  admitted  or  rejecting  the  applicant,  in 
such  a maner  as  to  show  the  fact  and  date  of  admission 
or  rejection.  The  officer  shall  sign  such  indorsement,  and 
the  passport  shall  be  returned  to  the  presenter. 

Sec.  3.  That  the  importation  into  the  United  States  of 
any  alien  for  the  purpose  of  prostitution  or  for  any  other 
immoral  purpose  is  hereby  forbidden;  and  whoever  shall, 
directly  or  indirectly,  import,  or  attempt  to  import,  into 
the  United  States,  any  alien  for  the  purpose  of  prostitu- 
tion or  for  any  other  immoral  purpose,  or  whoever  shall 
hold  or  attempt  to  hold  any  alien  for  any  such  purpose  in 


204  The  Exclusion  and  Expulsion  of  Aliens. 

pursuance  of  such  illegal  importation,  or  whoever  shall 
keep,  maintain,  control,  support,  employ,  or  harbor  in  any 
house  or  other  place,  for  the  purpose  of  prostitution  or 
for  any  other  immoral  purpose,  in  pursuance  of  such  il- 
legal importation,  any  alien,  shall,  in  every  such  case 
be  deemed  guilty  of  a felony,  and  on  conviction  thereof 
be  imprisoned  not  more  than  ten  years  and  pay  a fine  of 
not  more  than  five  thousand  dollars.  Jurisdiction  for  the 
trial  and  punishment  of  the  felonies  hereinbefore  set  forth 
shall  be  in  any  district  to  or  into  which  said  alien  is 
brought  in  pursuance  of  said  importation  by  the  person 
or  persons  accused,  or  in  any  district  in  which  a violation 
of  any  of  the  foregoing  provisions  of  this  section  occur. 
Any  alien  who  shall  be  found  an  inmate  of  or  connected 
with  the  management  of  a house  of  prostitution  or  practic- 
ing prostitution  after  such  alien  shall  have  entered  the 
United  States,  or  who  shall  receive,  share  in,  or  derive 
benefit  from  any  part  of  the  earnings  of  any  prostitute; 
or  who  is  employed*  by,  in,  or  in  connection  with  any  house 
of  prostitution  or  music  or  dance  hall  or  other  place  of 
amusement  or  resort  habitually  frequented  by  prostitutes, 
or  where  prostitutes  gather,  or  who  in  any  way  assists, 
protects,  or  promises  to  protect  from  arrest  any  prosti- 
tute, shall  be  deemed  to  be  unlawfully  within  the  United 
States  and  shall  be  deported  in  the  manner  provided  by 
sections  twenty  and  twenty-one  of  this  act.  That  any 
alien  who  shall,  after  he  has  been  debarred  or  deported  in 
pursuance  of  the  provisions  of  this  section,  attempt  there- 
after to  return  to  or  to  enter  the  United  States  shall  be 
deemed  guilty  of  a misdemeanor,  and  shall  be  imprisoned 
for  not  more  than  two  years.  Any  alien  who  shall  be  con- 
victed under  any  of  the  provisions  of  this  section  shall, 
at  the  expiration  of  his  sentence,  be  taken  into  custody 
and  returned  to  the  country  whence  he  came,  or  of  which 
he  is  a subject  or  a citizen  in  the  manner  provided  in 
sections  twenty  and  twenty-one  of  this  act.  In  all  prose- 
cutions under  this  section  the  testimony  of  a husband  or 
wife  shall  be  admissible  and  competent  evidence  against  a 
wife  or  husband. 

The  act  of  importing  alien  women  for  purposes  of  pros- 
titution was  prohibited  and  made  a felony  by  the  Act 
of  March  3,  1875,  punishable  by  imprisonment  not  exceed- 


The  Existing  Immigration  Law.  205 

ing  five  years  and  a fine  not  exceeding  five  thousand  dol- 
lars ;12  and  by  the  Act  of  March  3,  1903,  by  imprisonment 
for  not  less  than  one  nor  more  than  five  years,  the  fine  re- 
maining the  same.  The  present  acl  increases  the  duration 
of  the  imprisonment  to  ten  years  or  less  as  the  court  may 
decide.  The  attempt  to  import  women  for  these  purposes, 
ranking  here  as  well  as  in  the  Act  of  1903  with  the  feloni- 
ous act  of  completed  importation,  was  not  made  an  offense 
by  the  Act  of  1875;  thus  in  the  case  of  a woman  who  in- 
duced alien  girls  to  accompany  her  to  the  United  States, 
causing  them  to  believe  that  they  were  accompanying 
her  in  the  character  of  domestics,  and  in  which  the  girls, 
on  being  informed  before  landing  of  the  true  purpose  of 
their  importation,  recoiled  at  the  suggestion  of  such  a 
course,  it  was  held  that,  inasmuch  as  the  offense  of  im- 
porting them  for  the  purposes  of  prostitution  was  not 
committed,  the  woman  was  guilty  of  no  offense  under  the 
Act  of  1875. 13  The  statutory  provision  being  strictly  penal 
in  nature  must  be  strictly  construed.14 

The  Indictment. 

It  was  held  in  an  early  case  brought  under  the  Act  of 
1875  that  the  indictment  need  not  set  forth  the  acts  con- 
stituting the  importation  ;15  and  this  ruling  was  sustained 
in  a later  case,16  holding  that  an  indictment  charging  that 
the  defendant  imported  and  brought  into  the  Southern 
District  of  New  York,  from  Naples,  Italy,  six  women 
named,  for  the  purposes  of  prostitution  within  the  United 
States,  the  offense  was  sufficiently  charged.  No  specifica- 
tion of  any  particular  kind  of  prostitution  is  required, 
the  word  itself  being  sufficiently  definite,  nor  need  the  in- 
dictment set  out  the  exact  place  at  which  the  alien  is  to 

1218  Stat.  at  L.  477. 

13 In  re  Guayde,  112  Fed.  415. 

14United  States  v.  Bitty,  155  Fed.  938;  but  not  as  strictly  as  the  court 
there  construed  it.  See  208  U.  S.  393,  52  Law  Ed.  543. 

^United  States  v.  Johnson,  7 Fed.  453. 

16United  States  v.  Pagliano,  53  Fed.  1001. 


206  The  Exclusion  and  Expulsion  of  Aliens. 

be  used.17  The  holding  in  this  case — that  there  need  be 
no  allegation  that  the  importation  was  in  pursuance  of  an 
agreement  made  prior  to  the  importation18 — would  have 
no  application  to  a prosecution  under  the  present  act 
where  the  fact  that  the  holding  was  in  pursuance  of  the 
illegal  importation  is  the  main  element  in  the  offense 
which  gives  Congress  the  power  to  penalize  it;19  therefore 
an  indictment  thereunder  is  not  defective  if  it  alleges 
that  the  holding  or  attempting  to  hold  alien  females  im- 
ported for  prostitution  or  an  immoral  purpose  was  in  pur- 
suance of  unlawful  importation.20 

Evidence. 

The  fact  of  importation  of  aliens  for  immoral  pur- 
poses and  of  landing  or  holding  them  in  pursu- 
ance thereof  may,  of  course,  be  proven  like  any 
other  fact  in  criminal  prosecutions ; -thus  the  pos- 
session by  a person  charged  with  having  im- 
ported foreign  women  as  prostitutes,  and  for  purposes  of 
prostitution,  of  the  baggage  checks  of  the  entire  party  of 
six  women  tends  to  connect  the  defendant  with  the  im- 
portation, and  in  the  absence  of  explanation  would  justify 
the  conclusion  that  he  was  engaged  in  the  importation;21 
and  evidence  regarding  the  character  of  the  house  of  as- 
signation kept  by  defendant,  and  of  acts  done  at  such 
house  after  the  woman  was  imported  and  while  she  lived 
there  with  the  defendant,  relating  to  the  place  named  in 
the  indictment  as  that  where  the  purposes  of  prostitution 
was  to  be  carried  out,  is  admissible  to  show  the  purposes 
of  prostitution  laid  in  the  indictment.22  As  the  Acts  of 
1903  and  1907  make  the  importation  and  holding  and  har- 

i7United  States  v.  Pagliano,  53  Fed.  1001. 

izibid. 

isKeller  v.  United  States,  213  U.  S.  138,  53  Law  Ed.  737. 

zoUnited  States  v.  Krsteff,  185  Fed.  201.  As  to  sufficiency  of  allegation 
as  to  time  of  offense,  see  United  States  v.  Lair,  195  Fed.  47. 

2i53  Fed.  1001,  supra. 

22United  States  v.  Johnson,  7 Fed.  453. 


The  Existing  Immigration  Law. 


207 


boring  in  pursuance  thereof,  not  only  for  purposes  of  pros- 
titution but  for  immoral  purposes,  a felony,  the  estab- 
lished fact  that,  an  alien  woman  lived  in  concubinage  with 
the  person  importing  her  is  sufficient  to  prove  harboring 
her  for  an  immoral  purpose  in  pursuance  of  such  importa- 
tion, but  the  fact  that  an  alien  woman  came  to  the  United 
States  for  an  immoral  purpose  is  not  to  be  presumed  from 
the  fact  that,  six  months  after  arrival  here  she  went  to  live 
with  B as  his  wife,  the  passage  money  having  been  paid  by 
A.24 

Section  3 of  the  Act  of  February  20,  1907,  Held  Unconsti- 
tutional. 

In  the  case  of  Keller  v.  United  States,25  the  Supreme 
Court  held  that  the  provision  in  this  section,  prior  to  its 
amendment  by  the  Act  of  March  26,  1910,  stating  that 
“whoever  shall  keep,  maintain,  control,  support  or  harbor 
in  any  house  or  other  place,  for  the  purpose  of  prostitu- 
tion, or  for  any  other  immoral  purpose  any  alien  woman 
or  girl  within  three  years  after  she  shall  have  entered  the 
United  States,  shall  in  every  such  case  be  deemed  guilty 
of  a felony  and  on  conviction  thereof  be  imprisoned  not 
more  than  five  years,  and  pay  a fine  of  not  more  than  five 
thousand  dollars”  was  an  unconstitutional  assumption  by 
Congress  of  police  powers,  which  it  had  never  been 
granted.  Said  the  court:  “While  the  keeping  of  a house 
of  ill  fame  is  offensive  to  the  moral  sense,  yet  that  fact 
must  not  close  the  eye  to  the  question  whether  the  power 
to  punish  therefor  is  delegated  to  Congress  or  is  reserved 
to  the  states.  Jurisdiction  over  such  an  offense  comes 
within  the  accepted  definition  of  the  police  power.  Speak- 
ing generally  that  power  is  reserved  to  the  states,  for  there 
is  in  the  constitution  no  grant  thereof  to  Congress. 
“Were  Congress  to  assume  such  power,  then,”  said  the 
court,  “we  should  be  brought  face  to  face  with  such  a 

24United  States  esc  rel.  Huber  v.  Sibray,  178  Fed.  150. 

25213  U.  S.  138,  53  Law  Ed.  737 ; held  not  to  apply  to  the  territories  and 
particularly  to  the  territory  of  Hawaii,  3 U.  S.  D.  Ct.  Hawaii  481. 


208  The  Exclusion  and  Expulsion  of  Aliens. 

change  in  the  internal  conditions  of  this  country  as  was 
never  dreamed  of  by  the  framers  of  the  Constitution.” 

Nature  of  the  Offense. 

The  acts  penalized  by  this  section  are  three:  first,  im- 
porting or  attempting  to  import  alien  persons  for  any  im- 
moral purpose ; second,  holding  or  attempting  to  hold  any 
alien  for  such  purpose  in  pursuance  of  the  importation; 
third,  keeping,  maintaining,  or  harboring  in  any  house  or 
place  any  alien  in  pursuance  of  such  importation.  The 
amending  section  prohibits  the  holding  or  maintaining  of 
any  alien  at  all,  whereas  the  section  amended  made  such 
acts  criminal  only  if  committed  within  three  years  after 
the  importation.  The  first  act  alone  renders  the  felony 
complete,  whereas  the  second  and  third  are  felonious  only 
if  done  pursuant  to  the  importation,  and  the  attempt  to 
commit  any  one  of  the  three  renders  the  offender  equally 
liable.  Moreover,  it  is  immaterial  whether  the  importa- 
tion be  attempted  or  accomplished  directly  or  indirectly; 
the  penalty  is  the  same.  This  provision  has  been  held 
constitutional  and  within  the  power  of  Congress  to  enact.26 
Importation,  as  the  term  is  here  used,  is  deemed  to  be  com- 
pleted at  the  port  where  the  alien  was  landed.27 

The  Importation. 

The  act  of  importing  or  attempting  to  import  into  the 
United  States  aliens  for  an  immoral  purpose,  penalized  as 
a felony  in  this  section,  must  be  clearly  distinguished,  it 
has  been  said,  from  the  act  of  procuring  or  attempting  to 
bring  in  alien  women  for  prostitution  or  any  other  im- 
moral purpose.  The  latter  act,  if  proven,  renders  the  of- 
fender liable  to  deportation,  and  the  question  of  whether 
or  not  it  has  been  committed  is  solely  for  administrative 

26United  States  v.  Krsteff,  185  Fed.  201. 

27 Ibid.  Importation  into  the  Hawaiian  Islands  is  importation  into  the 
United  States,  and  it  must  be  shown  that  at  the  time  of  the  importation 
by  the  defendant  it  was  his  purpose  that  the  alien  should  engage  in  prosti- 
tution in  this  country.  United  States  v.  Meyama,  1 U.  S.  D.  Ct.  Hawaii  399. 


The  Existing  Immigration  Law. 


209 


determination.  The  existence  of  the  former  act  involving 
as  it  does  criminal  responsibility,  and  punishment  for  the 
commission  of  a criminal  offense,  can  only  be  determined 
by  regular  judicial  proceedings;  and  if  the  accused  alien 
is  found  guilty  deportation  after  the  expiration  of  the 
term  of  imprisonment  will  follow  as  a matter  of  course. 
But  deportation  cannot  be  ordered  in  the  absence  of  prior 
conviction.  “The  right  to  prosecute  criminally  and  the 
right  to  deport  are  inconsistent  as  concurrent  rights.” 
They  cannot  both  be  exercised  at  the  same  time.  Congress 
saw  the  necessity  of  making  the  proceedings  successive; 
and  it  clearly  and  probably  purposely  made  the  second 
step  depend  on  the  result  of  the  first  step.28 

The  Holding  or  Harboring 

of  the  alien,  in  order  to  be  done  in  pursuance  of  the  im- 
portation, must  constitute  the  final  link  in  a continuous 
chain  of  acts  participated  in  directly  or  indirectly  by  the 
offender,  connected  with  the  act  of  importing.  It  appears 
that  the  connection  between  the  importation  and  the  subse- 
quent illegal  act  must  be  uninterrupted;  thus  the  mere 
resumption  of  illegal  intercourse  with  an  alien  woman 
imported  by  the  accused  after  an  interruption  of  inter- 
course of  two  years’  duration  is  not  an  act  done  in  pur- 
suance of  such  importation.29  The  provision  is  obviously 
levelled  not  only  against  individuals  who  enter  into  illicit 
intercourse  with  aliens  they  have  imported  for  that  pur- 
pose, but  as  well  against  persons  who  receive  and  hold 
alien  women  for  intercourse  with  others,  provided  they 
themselves  have  taken  part  in  the  importation. 

The  Keller  case  shows  conclusively  that  either  holding 
cn  behalf  of  others,  or  harboring  for  the  fulfilment  of  one’s 

ssLewis  v.  Frick,  189  Fed.  146,  reversed  in  195  Fed.  693 ; and  see  ex  parte 
Pouliot,  196  Fed.  437 ; but  as  to  the  effect  of  an  acquittal  on  a criminal 
charge  involving  an  act  which  would  constitute  ground  for  deportation 
under  the  Chinese  Exclusion  Law,  see  Chin  Kee  v.  United  States,  196  Fed. 
74. 

29United  States  v.  Lavoie,  182  Fed.  943. 


210  The  Exclusion  and  Expulsion  of  Aliens. 


own  desires  if  done  apart  from  the  act  of  importation,  can- 
not be  made  the  subject  of  Congressional  legislation. 
Whether  such  holding  or  harboring  if  done  with  a knowl- 
edge of  such  importation  constitutes  an  act  done  in  pursu- 
ance thereof,  as  that  term  is  used  in  the  statute  is  still  to 
be  judicially  determined. 

“Any  Alien  ” 

Section  3 of  the  Act  of  1907  forbade  the  importation  of 
any  alien  woman  or  girl,  or  the  harboring  or  maintaining 
of  the  same  for  the  immoral  purposes  set  out  therein.  The 
prohibition  of  the  amended  section  applies  not  only  in 
terms  to  the  importation  of  women  or  girls  or  harboring 
or  maintaining  them  for  such  purposes,  but  to  “any  alien” 
thereby  including  aliens  of  either  sex  imported  with  that 
end  in  view.  This  would  seem  to  bar  the  door  effectively 
against  the  importation  of  go-betweens,  procurers,  or  pro- 
curer’s assistants,  and  all  members  of  the  male  sex  whose 
services  might  be  available  in  the  business  of  prostitu- 
tion or  in  any  other  immoral  connection.  It  might  not, 
however,  be  deemed  to  apply  to  domestics  in  such  houses, 
imported  for  service  essentially  domestic  in  nature. 
Jurisdiction  for  Trial  and  Punishment. 

It  appears  that  “any  district  to  or  into  which  such  alien 
is  brought”  means  the  district  into  which  she  is  brought 
by  the  vehicle  of  transportation — not  by  the  act  of  the 
party  or  parties  subsequent  to  her  landing;  thus  the 
crimes  of  holding  or  harboring  are  not  punishable  in  the 
Federal  District  of  Washington,  when  the  alien  landed 
at  a California  port,30  or  in  the  Federal  District  of  Illinois 
when  landed  at  New  York.31 

3oUnited  States  v.  Lavoie,  182  Fed.  943 ; see  169  Fed.  890. 

3i Ex  parte  Lair,  177  Fed.  789,  reversed  in  195  Fed.  47,  where  it  was 
held  that  a federal  court  sitting  in  another  state  could  not  assume  as  a 
matter  of  judicial  knowledge  that  the  offense  of  importing  an  alien  woman 
into  the  United  States  for  immoral  purposes  could  not  have  been  committed 
by  the  defendant  at  Chicago  within  the  Northern  District  of  Illinois  as 
against  a judgment  of  the  court  of  the  latter  district  finding  that  offense 
had  Been  so  committed.  United  States  v.  Lair,  195  Fed.  47. 


The  Existing  Immigration  Law. 


211 


Time  Within  Which  Alien  May  be  Deported . 

The  section  of  the  Act  of  1907  of  which  this  is  the 
amendment  provided  only  that  alien  females  who  were 
found  inmates  of  houses  of  prostitution  and  practising 
prostitution  within  three  years  after  they  entered  the 
United  States  should  be  deemed  to  be  unlawfully  therein 
and  subject  to  deportation,  and  was  silent  as  to  the  other 
classes  of  aliens  designated  in  the  present  section,  which, 
in  removing  the  time  limit  altogether,  repealed  the  prior 
section.32  The  result  is  that  any  such  alien,  if  prosecuted 
and  found  guilty  under  this  section,  may  be  deported  from 
the  United  States  at  any  time  after  entry;  and  the  pro- 
vision, although  attacked  as  being  unconstitutional,  has 
been  held  valid,  and  wholly  within  the  power  of  Congress 
to  enact;33  and  the  fact  that  an  alien  prostitute  has  re- 
sided in  the  United  States  for  a longer  time  than  the 
statutory  period  of  three  years  provided  by  the  Act  of 
1907,  does  not  remove  her  beyond  the  scope  of  the  amend- 
ment.34 But  proceedings  must  be  commenced  for  acts  com- 
mitted after  March  26,  1910.35 

To  What  Aliens  Applicable. 

It  will  be  noted  that  the  wording  of  this  clause  is  ex- 
tremely comprehensive,  designating  as  subjects  for  de- 
portation aliens  who  shall  be  found  “inmates  of  or  connec- 
tion with  the  management  of”  houses  of  prostitution;  or 
aliens  “employed  by  or  in  connection  with”  any  house  of 
prostitution  or  place  frequented  by  prostitutes.  This 
language,  although  sweeping,  might  not  be  deemed  to  ap- 
ply to  domestics  in  such  houses  receiving  pay  for  work  of 
a purely  domestic  nature.  But  even  if  construed  accord- 
ing to  the  literal  wording  of  the  section  it  would  seem  to 
be  wholly  within  the  powers  of  Congress  to  prescribe. 

33United  States  v.  Weis,  181  Fed.  860;  United  States  v.  Lavoie,  182  Fed. 
943;  United  States  v.  Williams,  183  Fed.  904;  United  States  v.  North 
German  Lloyd,  (same  v.  International  Marine  Co.),  185  Fed.  158. 

3*United  States  v.  Prentis,  182  Fed.  894,  185  Fed.  967,  supra. 

zslbid. 


212  The  Exclusion  and  Expulsion  of  Aliens. 

The  right  of  a nation  to  expel  or  deport  foreigners  who 
have  not  been  naturalized  is  as  absolute  and  unqualified  as 
the  right  to  prohibit  and  prevent  their  entrance  into  the 
country.36  Conversely,  as  it  may  exclude  them  alto- 
gether,37 it  may  expel  them  altogether;  and  particularly 
would  this  principle,  so  rigidly  applied  to  laborers  of  a 
nation  objectionable  for  no  reason  other  than  that  they  are 
laborers  of  such  nation,  apply  to  aliens  who  choose  as 
their  sole  means  of  support  a life  of  prostitution  and  dis- 
grace tending  to  degrade  the  moral  standards  of  the  resi- 
dents of  this  country  with  whom  they  come  in  contact. 

Return  of  Deported  Aliens  Made  a Misdemeanor. 

As  it  is  plainly  competent  for  Congress  to  declare  the 
act  of  an  alien  in  remaining  unlawfully  in  the  United 
States  to  be  an  offense  punishable  with  fine  or  imprison- 
ment38 it  is  equally  within  the  power  of  the  national  legis- 
lature to  make  the  return  or  attempt  to  return  on  the  part 
of  aliens  already  barred  out  and  deported  an  offense  pun- 
ishable as  criminal  offenses  are  punishable  in  the  United 
States.  It  would  seem,  however,  that  the  commission  of 
the  offense  must  be  regularly  established  by  a criminal 
trial  before  a judicial  tribunal.39 

Testimony  of  Husband  and  Wife. 

Under  the  acknowledged  power  of  every  legislature  to 
prescribe  rules  of  evidence  in  proceedings  adopted 
for  the  exercise  of  the  sovereign  right  to  admit  or  exclude 
aliens,40  Congress  has  further  provided  that  in  all  prosecu- 
tions under  this  section  the  testimony  of  a husband  or 
wife  shall  be  admissible  and  competent,  as  against  wife 
cr  husband. 

36Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

37Lem  Moon  Sing  v.  United  States,  158  U.  S.  539,  39  Law  Ed.  1082. 

38 Wong  Wing  v.  United  States,  163  U.  S.  228,  41  Law  Ed.  140. 

39Wong  Wing  v.  United  States,  163  U.  S.  228,  41  Law  Ed.  140. 

40United  States  v.  Fong  Yue  Ting,  149  U.  S.  698,  37  Law  Ed.  905;  In  re 
Moses,  83  Fed.  995. 


The  Existing  Immigration  Law. 


213 


General  Subject  Reviewed. 

The  provisions  of  this  section  apply  to  the  importation 
of  Chinese  prostitutes  as  well  as  to  those  of  every  other 
nationality,  notwithstanding  that  it  is  provided  in  section 
43  that  nothing  in  this  act  shall  be  deemed  to  repeal  the 
laws  relating  to  the  exclusion  of  Chinese.41  As  is  apparent 
from  the  wording  of  the  section,  it  is  the  importation  of 
women  and  girls  for  the  purpose  of  prostitution  or  for  any 
other  immoral  purpose  which  is  prohibited.  It  is  to  be 
noted  that,  although  section  2 prohibits  the  coming  to  the 
United  States  of  prostitutes,  section  3 does  not  prohibit 
the  importation  of  “prostitutes,”  but  of  “any  alien  for  the 
purpose  of  prostitution  or  for  any  other  immoral  pur- 
pose.” Although,  if  it  could  be  shown  that  prior  to  im- 
portation the  alien  so  imported  had  at  some  previous 
time  been  a member  of  the  objectionable  class,  this  fact 
would  be  entitled  to  great  weight  in  passing  on  the  point 
as  to  whether  or  not  she  had  been  imported  to  the  United 
States  for  the  prohibited  purposes,  it  would  not  neces- 
sarily render  the  person  importing  her  subject  to  the  penal 
provisions  of  the  section  unless  it  were  shown  beyond  a 
reasonable  doubt  that  he  had  imported  her  with  immoral 
ends  in  view.  In  order  to  prove  the  offense  it  must  be 
shown  that  the  defendant  knowingly  and  wilfully  im- 
ported or  caused  the  alien  to  be  imported  for  the  purposes 
prohibited  by  the  statute;42  and  to  prove  the  holding  or 
attempting  to  hold  in  pursuance  of  such  importation  it 
must  be  shown  that  the  defendant  knowingly  and  wilfully 
imported  or  caused  the  alien  to  be  imported  for  the  pur- 
poses shown.  To  constitute  the  holding  it  is  not  necessary 
that  the  defendant  should  have  held  her  by  physical  force, 
but  that  she  should  have  been  detained  by  him  for  such 
purposes,  either  by  physical  means  directly,  or  indirectly 
applied  to  her  by  him,  or  by  threats  or  commands  directly 

4iLooe  Shee  v.  North,  170  Fed.  566. 

42United  States  v.  Giuliani,  147  Fed.  594. 


214  The  Exclusion  and  Expulsion  of  Aliens. 

or  indirectly  made  by  the  defendant  calculated  to  operate 
to  restrain  her  freedom  of  action  and  will.  To  constitute 
an  attempt  to  hold  the  defendant  should  have  made  an 
effort,  effectual  or  ineffectual,  by  means  designed  and  to 
a greater  or  less  extent  calculated,  to  effect  the  object, 
to  hold  her  for  purposes  of  prostitution  or  other  immoral 
purposes,  with  an  intention  on  the  part  of  the  defendant 
at  the  time  thus  to  hold  her.43 

Where  defendant  persuaded  two  alien  women  to  accom- 
pany her  to  the  United  States  in  the  capacity  of  domestics, 
and  while  on  shipboard  told  them  that  they  were  to  be- 
come prostitutes  on  their  arrival,  which  they  refused  to  do, 
it  was  held  to  be  no  offense  under  the  statute  of  March  3, 
1875,  which  provided  no  penalty  for  an  attempt  to  import 
women  for  purposes  of  prostitution.44  The  opposite  result 
would  necessarily  be  reached  under  the  present  law. 

Sec.  4.  That  it  shall  be  a misdemeanor  for  any  person, 
company,  partnership,  or  corporation,  in  any  manner 
whatsoever,  to  prepay  the  transportation  or  in  any  way 
to  assist  or  encourage  the  importation  or  migration  of  any 
contract  laborer  or  contract  laborers  into  the  United 
States,  unless  such  contract  laborer  or  contract  laborers 
are  exempted  under  the  terms  of  the  last  two  provisos  con- 
tained in  section  two  of  this  act. 

Sec.  5.  That  for  every  violation  of  any  of  the  provisions 
of  section  four  of  this  act  the  person,  partnership,  com- 
pany or  corporation  violating  the  same,  by  knowingly  as- 
sisting, encouraging,  or  soliciting  the  migration  or  im- 
portation of  any  contract  laborer  into  the  United  States 
shall  forfeit  and  pay  for  every  such  offense  the  sum  of  one 
thousand  dollars,  which  may  be  sued  for  and  recovered  by 
the  United  States,  or  by  any  person  who  shall  first  bring 
his  action  therefor  in  his  own  name  and  for  his  own  benefit, 
including  any  such  alien  thus  promised  labor  or  service 
of  any  kind  as  aforesaid,  as  debts  of  like  amount  are  now 
recovered  in  the  courts  of  the  United  States ; and  separate 

« Ibid. 

4*In  re  Guayde,  112  Fed.  415. 


The  Existing  Immigration  Law. 


215 


suits  may  be  brought  for  each  alien  thus  promised  labor 
or  service  of  any  kind  as  aforesaid.  And  it  shall  be  the 
duty  of  the  district  attorney  of  the  proper  district  to  prose- 
cute every  such  suit  when  brought  by  the  United  States. 

Sec.  6.  That  it  shall  be  unlawful  and  be  deemed  a viola- 
tion of  section  four  of  this  act  to  assist  or  encourage  the 
importation  or  migration  of  any  alien  by  promise  of  em- 
ployment through  advertisements  printed  and  published 
in  any  foreign  country ; and  any  alien  coming  to  this  coun- 
try in  consequence  of  such  an  advertisement  shall  be 
treated  as  coming  under  promise  or  agreement  as  contem- 
plated in  section  two  of  this  act,  and  the  penalties  imposed 
by  section  five  of  this  act  shall  be  applicable  to  such  a 
case : Provided , That  this  section  shall  not  apply  to  states 
or  territories,  the  District  of  Columbia,  or  places  subject 
to  the  jurisdiction  of  the  United  States  advertising  the  in- 
ducements they  offer  for  immigration  thereto,  respec- 
tively.45 

45ln  an  opinion  rendered  March  6,  1907,  the  Attorney  General  held  that, 
in  dealing  with  the  payment  of  passage  money  or  other  specific  assistance  to 
migration  of  individual  aliens,  no  exception  is  made  in  favor  of  states  and 
no  exception  exists  in  favor  of  any  person  because  he  may  act  as  the  agent 
of  a state  (26  Op.  Atty.  Gen.  180-192).  It  was  therein  held  that  where 
aliens  came  to  this  country  by  virtue  of  representations  made  by  an  officer 
of  the  State  of  South  Carolina  appointed  under  a statute  which  expressly 
permitted  him  to  act  as  agent  for  the  citizens  of  that  state  in  the  procuring 
of  desirable  alien  immigrants,  they  were  excludable  as  contract  laborers 
where  the  officer  visited  foreign  countries  largely  or  wholly  at  the  expense 
of  said  citizens  and  by  advertisement,  promises  of  employment,  and  pre- 
payment of  passage  induced  them  to  migrate  to  South  Carolina.  26  Op. 
Atty.  Gen.  180.  In  a later  opinion,  rendered  March  20,  1907,  it  was  held 
that  the  word  “person”  as  used  in  section  4 of  the  act  did  not  include  a 
state  but  did  include  an  officer  of  a state  professing  to  act  under  its  au- 
thority who,  by  prepayment  of  the  passage  of  an  alien,  should  induce  the 
latter  to  migrate  by  any  offer,  solicitation,  promise  or  agreement  to  per- 
form labor;  and  held  further  that  a state  might  prepay  the  passage  of 
an  alien  immigrant  out  of  its  public  funds,  the  advertisement  being  lawful, 
and  neither  the  state  nor  its  officers  nor  anyone  else  having  otherwise  so- 
licited or  encouraged  the  migration  of  said  alien.  The  opinion  further  held 
that  it  is  lawful  for  a state  to  publish  these  advertisements  to  immigration 
and  to  state  as  part  of  such  advertisement  the  scale  of  wages  generally  pre- 
vailing within  its  territory.  26  Op.  Atty.  Gen.  199.  In  a later  opinion 
rendered  on  September  30,  1907,  the  view  was  again  reiterated  that  the  act 
contains  no  exceptions  in  favor  of  a state  in  reference  to  specific  promises  of 
employment  to  individual  immigrants  and  that  the  payment  of  an  immi- 


216  The  Exclusion  and  Expulsion  of  Aliens. 


The  power  of  Congress  to  punish  any  person  assisting 
in  the  introduction  of  persons  belonging  to  a class  to  which 
entrance  into  the  United  States  is  forbidden  was  held  by 
the  Supreme  Court  to  be  a necessary  incident  to  the  exer- 

grant’s  passage  out  of  the  state  funds  does  not  of  itself  require  his  ex- 
clusion. 26  Op.  Atty.  Gen.  410.  A territorial  government,  such  as  Hawaii, 
is  not  a person  under  section  4,  nor  is  it  a corporation,  association,  society, 
municipality  or  foreign  government  under  section  2.  27  Op.  Atty.  Gen.  479, 
July  26,  1909. 

If  it  is  admitted  that  a state  or  territory  is  not  a person,  and  that  the 
prepayment  out  of  public  funds  of  the  passage  of  an  alien  for  the  purpose 
of  bringing  about  his  migration  to  this  country  does  not  render  him  liable 
to  exclusion  because  his  passage  has  been  paid,  it  is  somewhat  difficult  to 
perceive  why  or  how  the  opposite  result  must  follow  when  the  passage  has 
been  paid  by  an  individual  acting  for  the  State — particularly  since  the  only 
method  in  which  a state  can  act  is  through  the  intervention  of  a natural 
person.  Of  course,  if  the  person  who  prepays  the  passage  does  not  really 
represent  the  state,  or  if  the  passage  is  paid  for  with  the  money  and  for  the 
the  benefit  of  private  citizens  of  a state  under  the  cloak  of  legislative 
authority,  it  is  plain  that  the  alien  should  be  excluded.  In  the  opinion 
of  March  20,  1907,  it  is  said  that  a state  may  prepay  the  passage  of  an 
alien  immigrant  out  of  its  public  funds,  1 1 the  advertisement  being  lawful.  ’ ’ 
It  is  not  wholly  clear  how  any  advertisement  by  a state  may  be 
other  than  lawful  in  view  of  the  fact  that  section  6 excepts  from  its  pro- 
hibition against  the  encouraging  of  the  importation  of  immigration  of  any 
alien  by  a promise  of  employment  through  advertisements  printed  and 
published  in  any  foreign  country,  the  states  or  territories  and  the  District 
of  Columbia,  which  advertise  the  inducements  they  offer  for  immigration 
thereto.  Section  6 provides  that  any  person  who  shall  enter  in  conse- 
quence of  an  advertisement  shall  be  treated  as  coming  under  a promise  or 
agreement  as  contemplated  in  section  2;  and  section  2 characterizes  as  con- 
tract laborers  aliens  who  have  been  induced  or  solicited  to  migrate  by  prom- 
ises of  employment  or  in  consequence  of  agreements.  Just  how  the  act 
act  imposes  a check  upon  states  or  territories  against  the  introduction  of 
aliens  as  contract  laborers  does  not  plainly  appear;  and  if  we  assume  that 
the  inducements  held  out  in  the  advertisements  published  by  states  or 
territories  in  foreign  countries  are  limited  to  statements  of  the  general 
beneficial  results  to  be  derived  from  settlement  in  any  particular  state  or 
territory,  the  absence  of  representations  as  to  specific  work  for  specific  wages 
would  seem  to  have  no  effect  whatsoever  on  the  mischief  created  as  a result 
of  migration  coming  from  such  advertisements,  to  wit,  the  presence  of  aliens 
in  this  country,  who,  not  being  by  their  coming  bound  to  work  for  any  specific 
wage  may  select  whatever  kind  of  labor  they  choose  at  whatever  rates  they 
may  elect  to  accept. 


The  Existing  Immigration  Law.  217 

cise  of  the  inherent  power  of  exclusion  vested  in  the  United 
States.46 

The  words  “shall  forfeit  and  pay  for  every  such  of- 
fense the  sum  of  one  thousand  dollars’’  repeats  the  lan- 
guage of  section  3 of  the  Act  of  February  26,  1885,  but 
that  act  did  not  in  terms  designate  the  offense  as  a mis- 
demeanor. Nor  did  the  Act  of  March  3,  1903,  but  merely 
made  the  acts  prohibited  unlawful,  and  provided  as  a pen- 
alty therefor  that  the  transgressor  should  forfeit  and  pay 
for  every  such  offense  the  sum  of  one  thousand  dollars, 

“which  may  be  sued  for as  debts  of  like  amount  are 

now  recovered  in  courts  of  the  United  States.”47 

Method  of  Bringing  Suit. 

(a)  Civil. 

It  was  held,  that  under  the  Act  of  February  26,  1885, 
an  action  of  debt  to  recover  a penalty  under  this  statute 
is  the  proper  form  of  action,  not  only  by  the  terms  of  the 
statute  but  also  on  general  principles,  for,  while  the  ac- 
tion, being  based  on  a violation  of  the  statute,  sounds  in 
tort,  yet  debt  lies  for  a statutory  penalty  because  the  sum 
demanded  is  certain.48  “It  must  be  taken  as  settled  law,” 
says  the  Supreme  Court,  in  interpreting  these  sections  in 
the  case  of  Hepner  v.  United  States,49  “that  a certain 
sum,  or  a sum  which  can  readily  be  reduced  to  a cer- 
tainty, prescribed  in  a statute  as  a penalty  for  the  viola- 
tion of  law,  may  be  recovered  by  civil  action,  even  if  it 
may  also  be  recovered  in  a proceeding  which  is  technically 
criminal.  Of  course,  if  the  statute  by  which  the  penalty 
was  imposed  contemplated  recovery  only  by  a criminal 

proceeding,  a civil  remedy  could  not  be  adopted 

But  there  can  be  no  doubt  that  the  words  of  the  statute 

4«U.  S.  v.  Lees,  150  U.  S.  476,  37  Law  Ed.  1150. 

4?United  States  v.  M ’Elroy,  115  Fed.  252. 

48Hepner  v.  United  States,  213  U.  S.  103,  53  Law  Ed.  720. 

49The  Courts  of  First  Instance  in  the  Philippines  are  held  to  be  courts  of 
the  United  States  for  the  purposes  of  such  suits.  Oehlers  v.  Hartwig,  5 
Phil.  Rep.  487. 


218  The  Exclusion  and  Expulsion  of  Aliens. 


on  which  the  present  suit  is  based  are  broad  enough  to 
embrace,  and  were  intended  to  embrace,  a civil  action  to 
recover  the  prescribed  penalty.  It  provides  that  the  pen- 
alty of  $1,000  may  be  ‘sued  for’  and  recovered  by  the 
United  States  or  by  any  ‘person’  who  shall  first  bring  his 
‘action’  therefor  ‘in  his  own  name  and  for  his  own  benefit,’ 
‘as  debts  of  like  amount  are  now  recovered  in  the  courts  of 
the  United  States ;’  and  ‘separate  suits’  may  be  brought  for 
each  alien  thus  promised  labor  or  service  of  any  kind.  The 
district  attorney  is  required  to  prosecute  every  such  ‘suit’ 
when  brought  by  the  United  States.  These  references  in 
the  statute  to  the  proceeding  for  recovering  the  penalty 
plainly  indicate  that  a civil  action  is  an  appropriate  mode 
of  proceeding.” 

Who  May  Bring  Suit. 

The  words  “in  his  own  name  and  for  his  own  benefit”  re- 
peat the  language  of  the  Act  of  March  3,  1903,  but  were 
not  contained  in  the  Act  of  1885.  Thus,  in  a suit  brought 
under  that  act  it  was  held  that  a private  person  could  not 
sue  for  his  own  benefit  by  his  private  attorney  to  recover 
the  penalty  imposed  by  this  section.  While  the  action 
could  be  brought  in  the  name  of  a private  person  it  was 
held  to  be  of  a nature  highly  penal,  that  prosecution  by 
the  United  States  District  Attorney  was  necessary,  and 
that  the  proceeds  of  any  judgment  recovered  therein  should 
be  paid  into  the  Treasury  of  the  United  States ; and  finally 
that  the  Deficiencies  Appropriation  Act  of  October  19, 
1888,  which  authorized  the  Secretary  of  the  Treasury  to 
pay  informers  any  reasonable  amount  not  exceeding  fifty 
per  cent,  of  the  amount  recovered  in  consequence  of  in- 
formation given  by  them,  made  no  change  in  this  respect.50 
Thus  the  law  stood  up  to  the  enactment  of  the  Act  of  March 
3,  1903,  which  provided  that  suit  might  be  brought  “by  any 
person  who  shall  first  bring  his  action  therefore  in  his  own 
name  and  for  his  own  benefit which  provision  is  included 

eoRosenberg  y.  Union  Iron  Works,  109  Fed.  844. 


The  Existing  Immigration  Law. 


219 


in  the  present  section.  When  “suit”  is  brought  on  behalf 
of  the  United  States  the  district  attorney  prosecutes  the 
case.51 

(b.)  Criminal. 

In  the  case  of  United  States  v.  Stevenson52  it  was  con- 
tended that  the  action  for  a penalty  was  exclusive  of  all 
other  means  of  enforcing  the  act,  and  that  an  indictment 
would  not  lie  as  for  an  alleged  offense  within  the  terms  of 
the  act.  But  it  had  already  been  decided  by  the  Supreme 
Court53  that  a penalty  might  be  recovered  by  indictment 
or  information  in  a criminal  action,  as  well  as  by  a civil 
action  in  the  form  of  an  action  for  debt.  In  the  Stevenson 
case  the  court  pointed  out  that  the  “statute  does  not  in 
terms  undertake  to  make  an  action  for  the  penalty  an 
exclusive  means  of  enforcing  it,  and  only  provides  that  it 
may  be  thus  sued  for  and  recovered.  There  is  nothing  in 
the  terms  of  the  act  specifically  undertaking  to  restrict  the 
Government  to  this  method  of  enforcing  the  law.  If  is  not 
to  be  presumed,  in  the  absence  of  language  clearly  indicat- 
ing the  contrary  intention,  that  it  was  the  purpose  of  Con- 
gress to  take  from  the  Government  the  well  recognized 
method  of  enforcing  such  a statute  by  indictment  and  crim- 
inal proceedings.”  The  court,  after  particularly  calling 
attention  to  the  fact  that  under  the  Act  of  March  3,  1903, 
the  act  of  importing  aliens,  or  encouraging  their  importa- 
tion was  merely  made  “unlawful,”  whereas  the  present  act, 
on  the  contrary,  make  such  acts  misdemeanors,  proceeds: 
“Nor  can  we  perceive  any  purpose  in  making  the  change 
except  to  manifest  the  intention  of  Congress  to  make  it 
clear  that  the  acts  denounced  should  constitute  a crime 
which  would  carry  with  it  the  right  of  the  Government  to 

prosecute  as  for  a crime Congress  having  declared 

the  acts  in  question  to  constitute  a misdemeanor,  and  hav- 

51Hepner  v.  United  States,  213  U.  S.  103,  53  Law  Ed.  720. 

52United  States  v.  Stevenson  et  al.,  215  U.  S.  190,  54  Law  Ed.  153. 

53Lees  v.  United  States,  150  U.  S.  476,  37  Law  Ed.  1150. 


220  The  Exclusion  and  Expulsion  of  Aliens. 


ing  provided  that  an  action  for  a penalty  may  be  prose- 
cuted, we  think  there  is  nothing  in  the  terms  of  the  statute 
which  will  cut  down  the  right  of  the  Government  to  prose- 
cute by  indictment  if  it  shall  choose  to  resort  to  that 
method  of  seeking  to  punish  an  alleged  offender  against 
the  statute.” 

Nature  of  the  Action. 

The  case  of  Lees  v.The  United  States54  was,  says  the  court 
in  the  Hepner  case,55  “a  civil  action  to  recover  a penalty 
for  importing  an  alien  into  the  United  States  to  perform 
labor  in  violation  of  the  Act  of  February  26,  1885.  In  that 
case  the  trial  court  compelled  one  of  the  defendants  to  tes- 
tify for  the  United  States  and  furnish  evidence  against 
themselves.  This  court  held  that  that  could  not  be  done; 
saying  that  ‘this,  though  an  action  civil  in  form,  is  un- 
questionably criminal  in  its  nature,  and  in  such  a case  a 
defendant  cannot  be  compelled  to  be  a witness  against 
himself’ — meaning  thereby  only  that  the  action  was  of 
such  a criminal  nature  as  to  prevent  the  use  of  deposi- 
tions.” That  case  does  not  “modify  or  disturb  but  recog- 
nizes the  general  rule  that  penalties  may  be  recovered  by 
civil  actions,  although  such  actions  may  be  so  far  criminal 
in  their  nature  that  the  defendant  cannot  be  compelled 
to  testify  against  himself  in  such  actions  in  respect  to  any 
matters  involving,  or  that  may  involve,  his  being  guilty  of 
a criminal  offense.” 

The  burden  of  proof  in  such  actions  is  on  the  Govern- 
ment and  a verdict  cannot  be  directed  for  the  Government 
when  there  is  a reasonable  doubt  as  to  whether  the  defend- 
ant has  committed  the  offense  of  assisting  in  the  importa- 

54150  U.  S.  476,  37  Law  Ed.  1150. 

55213  U.  S.  103,  53  Law  Ed.  720;  and  it  was  held  in  the  case  of  United 
States  v.  Banister,  70  Fed.  44,  that  an  action  by  the  United  States  to  recover 
the  statutory  penalty  for  violating  the  contract  labor  provisions  of  the  Act 
of  1885  is  an  action  sounding  in  tort  and  hence  there  is  no  privilege  of  ex- 
emption from  arrest  therein. 


The  Existing  Immigration  Law.  221 

tion  of  contract  laborers;56  but  a verdict  may  be  directed 
for  the  Government  where  it  appears  by  undisputed  tes- 
timony that  the  defendant  committed  the  offense.57 

Jury  Trial. 

In  the  Hepner  case58  the  action  was  one  of  debt  brought 
by  the  Government  to  recover  a penalty  under  sections  4 
and  5 for  having  induced  an  alien  to  enter  this  country 
for  the  purpose  of  performing  labor  under  contract.  The 
court  held  that  the  defendant  was  “of  course,  entitled  to 
have  a jury  summoned  in  this  case,  but  that  right  was  sub- 
ject to  the  condition,  fundamental  in  the  conduct  of  civil 
actions,  that  the  court  may  withdraw  a case  from  a jury 
and  direct  a verdict  according  to  the  law  if  the  evidence 
is  uncontradicted  and  raises  only  a question  of  law.” 

Subjection  of  Parties  to  Penalty  Other  Than  That  Pro- 
vided by  this  Act. 

In  the  case  of  United  States  v.  Stevenson,59  the  defend- 
ants were  proceeded  against  under  an  indictment  which  in 
its  second  count  charged  a conspiracy  under  paragraph 
5440  of  the  Revised  Statutes  of  the  United  States  to  com- 
mit the  offense  of  assisting  alien  contract  laborers  to  mi- 
grate to  this  country  in  violation  of  the  immigration  law. 
The  court  said  “inasmuch  as  we  have  already  held  that 
Congress  in  making  the  assistance  of  contract  laborers  into 
the  United  States  a misdemeanor,  has  made  the  same  a 
crime,  indictable  as  such,  under  the  Immigration  Act  of 
1907,  it  must  necessarily  follow  that  if  two  or  more  per- 
sons, as  is  charged  in  the  indictment  under  consideration, 
conspire  to  assist  such  importation,  they  do  conspire  to 
commit  an  offense  against  the  United  States  within  the 
terms  of  paragraph  5440  of  the  Revised  Statutes  of  the 
United  States Nor  does  it  may  any  difference  that 

56Regan  v.  United  States,  183  Fed.  293. 

57  Ibid. 

58213  U.  S.  103,  53  Law  Ed.  720. 

59215  U.  S.  200,  54  Law  Ed.  157. 


222  The  Exclusion  and  Expulsion  of  Aliens. 


Congress  has  seen  fit  to  affix  a greater  punishment  to  the 
conspiracy  to  commit  the  offense  than  is  denounced 
against  the  offense  itself ; that  is  a matter  to  be  determined 
by  the  legislative  body  having  power  to  regulate  the  mat- 
ter.” 

The  Complaint. 

What  constituted  or  failed  to  constitute  good  and  suf- 
ficient complaints  for  violations  of  the  preceding  Acts  of 
February  26,  1885,  and  March  3,  1891,  are  of  little  value 
as  precedents  owing  to  the  changes  which  have  been  made 
in  the  law  referring  particularly  as  to  what  acts  shall 
constitute  the  promise  or  agreement,  which  if  acted  upon 
by  an  alien,  render  the  person  making  them  subject  to 
the  penalty  provided.  To  give  a right  of  action  under  the 
Act  of  1885  three  things  were  held  to  be  essential:  (1) 
The  immigrant  must,  previous  to  becoming  a resident  of  the 
United  States,  have  entered  into  a contract  to  perform  or  to 
continue  to  perform60  labor  or  service  here;  (2)  he  must 
actually  have  migrated  to  the  United  States  in  pursuance 
of  such  contract;  (3)  the  defendant  must  have  prepaid 
his  transportation,  or  assisted  therein,  and  encouraged  or 
solicited  his  migration  knowing  that  he  had  entered  into 
this  illegal  contract.61  Therefore  the  omission  to  state 
in  the  complaint  that  the  laborer  had  been  imported,  and 
that  the  defendant  knew  when  he  assisted  or  encouraged 
him  to  enter  that  he  was  under  a contract  to  labor  here, 
vitiated  the  complaint;62  and  where  the  complaint  for  the 
recovery  of  a penalty  failed  to  show  any  agreement  as  to 
the  time  or  amount  or  compensation,  and  showed  further 
that  one  of  the  acts  necessary  to  complete  the  illegal  con- 
tract or  agreement  had  to  be  done  in  the  United  States  the 
complaint  was  held  to  be  insufficient.63 

eoUnited  States  v.  Great  Falls  & C.  Ry.  Co.,  53  Fed.  77. 

eiUnited  States  v.  Craig,  28  Fed.  795. 

62United  States  v.  Borneman,  41  Fed.  751. 

eaUnited  States  v.  Edgar,  48  Fed.  91. 


The  Existing  Immigration  Law. 


223 


By  section  3 of  the  Act  of  March  3,  1891,  the  violation 
was  designated  to  consist  in  “assisting  or  encouraging  the 
migration  or  importation  of  any  alien  by  promise  of  em- 
ployment through  advertisements  printed  and  published 
in  any  foreign  country,”  and  that  any  alien  coming  to  the 
United  States  in  consequence  of  such  advertisement  was 
to  be  “treated  as  coming  under  a contract  as  contemplated 
by  such  act.”  The  stumbling  block  of  a “contract  previ- 
ously entered  into”  was  avoided  by  this  provision,  it  is 
true,  but  it  seems  that  even  under  this  provision  any  as- 
surance of  probable  employment,  followed  up  by  migration 
on  the  part  of  an  alien,  had  to  “be  definite  as  to  the  kind, 
the  place,  and  the  rate  of  wages”  in  order  to  be  a promise 
of  employment  within  the  meaning  of  the  statute.  A com- 
plaint containing  these  elements  was  sufficient  to  support 
an  action  for  the  penalty  prescribed.64  It  was  held  gener- 
ally in  decisions  rendered  under  the  Act  of  1891  that  the 
acts  of  assistance,65  the  character  of  the  labor  or  service 
to  be  rendered,  and  the  elements  of  the  contract  should  be 
definitely  set  out.67 

Section  If 

specifies  the  two  elements  which  constitute  the  offense: 
(1)  the  prepayment  of  the  transportion  or  the  assistance 
or  encouragement  in  any  way  of  the  importation  or  migra- 
tion of  an  alien;  (2)  the  alien  must  be  a contract  laborer, 
i e.,  a person  “induced  or  solicited  to  migrate  to  this  coun- 
try by  offers  or  promises  of  employment,  or  in  consequence 
of  agreements,  oral,  written,  or  printed,  express  or  im- 
plied, to  perform  labor  in  this  country.”68  The  first  ele- 
ments must  always  be  present  and  therefore  should  always 
be  clearly  set  out  in  the  complaint.  The  second  element  is 
divisible  into  two : first,  that  of  “offers  or  promises  of  em- 

eUJnited  States  v.  Baltic  Mills  Co.,  124  Ted.  38. 

65United  States  v.  Tye,  70  Fed.  318. 

67United  States  v.  Gay,  80  Fed.  254;  Moller  v.  United  States,  57  Fed.  490. 

68Seetion  2. 


224  The  Exclusion  and  Expulsion  of  Aliens. 

ployinent,”  second,  “agreements.”  The  complaint  should 
set  out  clearly  the  offers  or  promises  and  the  fact  that  they 
were  made  by  the  defendant;  as  for  the  “agreements,”  it 
would  seem  that  their  existence  must  be  alleged  as  such; 
that  is,  as  a transaction  in  which  the  defendant  and  the 
alien  have  both  taken  a part,  and  in  consequence  of  which 
the  alien  has  come  to  the  United  States.  But  section  6 
provides  that  “any  alien”  whose  importation  or  migration 
has  been  assisted  or  encouraged  by  promise  of  employment 
through  advertisements  printed  and  published  in  any  for- 
eign country  shall  be  deemed  as  coming  by  “agreement” 
and  the  penalties  imposed  by  section  5 shall  be  applicable 
to  such  a case.  Here  it  would  seem  that  besides  the  allega- 
tions in  number  (1),  supra , the  complaint,  to  be  sufficient 
need  allege  no  more  than  the  fact  of  the  advertisement  in 
the  foreign  country,  that  it  was  published  there  by  the 
defendant  and  that  it  contained  a promise  of  employ- 
ment.69 

Section  5 

amplifies  section  4 by  stating  that  a violation  of  the  same 
shall  consist  in  “knowingly  assisting,  encouraging  or  so- 
liciting the  migration  or  importation  of  any  contract  la- 
borer into  the  United  States.”  Section  6 further  provides 
that  it  shall  be  deemed  a violation  of  section  4 “to  assist 
or  encourage  the  migration  or  importation  of  any  alien 
by  promise  of  employment  through  advertisements  printed 
and  published  in  any  foreign  country;”  and  imposes  the 
penalties  of  section  5 for  such  violation — but  only,  it  ap- 
pears, if  the  alien  shall  migrate  in  consequence  of  such  ad- 
vertisement. 

It  is  to  be  noted,  however,  that  no  one  of  these  three 
sections  is  violated  unless  (1)  the  persons  solicited  come 

esDeclaration  in  an  action  for  debt  to  recover  a penalty  for  the  importa- 
tion of  alien  laborers  to  Porto  Rico  in  violation  of  the  Act  of  March  3,  1903, 
must  contain  allegation  that  labor  or  service  is  not  of  the  character  ex- 
cepted by  section  2.  United  States  v.  Michelana,  1 Porto  Rico  Fed.  Rep.  209. 


The  Existing  Immigration  Law. 


225 


to  the  United  States;  (2)  they  have  been  induced  to  mi- 
grate by  offers  or  promises  of  employment,  or  in  conse- 
quence of  agreements  to  perform  labor.  A mere  promise 
or  general  offer  of  employment  would  seem  sufficient,  pro- 
vided the  alien  come  to  the  United  States  in  consequence 
thereof.  The  coming  in  consequence  of  an  actual  agree- 
ment constitutes  the  alien  a contract  laborer  under  section 
2 of  the  act  and  renders  the  party  inducing  him  to  come 
liable  under  sections  4 and  5.  But  under  section  6 the  fact 
of  an  advertisement  containing  a promise  of  employment 
that  an  alien  comes  to  the  United  States  in  consequence 
constitutes  of  itself  the  agreement  contemplated  in  section 
2 ; thereby  creating,  as  it  were,  an  artificial  agreement  aris- 
ing by  the  co-existence  of  two  facts : the  advertisement  and 
the  action  of  the  alien  induced  by  the  same,  which  would 
seem  to  render  any  additional  proof  of  an  actual  oral  or 
written  assent  by  the  parties  unnecessary. 

The  Act  of  March  3, 1891,  amending  the  Act  of  February 
26, 1885,  prohibited  the  migration  of  any  alien  “by  promise 
of  employment  through  advertisements  printed  and  pub- 
lished in  any  foreign  country,”  and  any  alien  coming  to 
this  country  in  consequence  of  such  an  advertisement 
“shall  be  treated  as  coming  under  a contract  as  contem- 
plated by  such  act.”  “This  amendment,”  says  the  courFm 
United  States  v.  Baltic  Mills,70  “was  intended  to  dispense 
with  the  necessity  of  proving  that  there  had  been  a con- 
tract with  the  alien  “made  previous  to  the  importation  or 
migration,”  or  that  there  had  been  any  other  assistance  or 
encouragement  to  his  migration  than  a promise  of  employ- 
ment  The  word  promise  is  used  in  the  sense  in 

which  advertisements  commonly  promise  employment  to 
applicants.  Under  the  former  statute  there  could  be  no 
antecedent  contract  by  an  advertisement  however  explicit 
the  terms  of  the  promise  might  be,  because  the  promise 
could  not,  until  the  alien  entered  upon  its  performance, 

70TJnited  States  v.  Baltic  Mills  Co.,  124  Fed.  38. 


226  The  Exclusion  and  Expulsion  of  Aliens. 

become  a contract The  proviso  indicates  that  Con- 

gress did  not  use  the  word  promise  in  its  strict  legal 
meaning,  but  rather  in  the  sense  of  an  assurance  or  induce- 
ment to  encourage  aliens  to  migrate.  The  proviso  with- 
draws from  the  operation  of  the  section  the  inducements 
advertised  by  states  and  immigration  bureaus  of  states 
offered  for  immigration  to  such  states.  The  advertise- 
ments do  not  ordinarily  contain  promises  of  employment 
in  the  nature  of  specific  proposals,  but  contain  assurances 
of  opportunity  for  employment  and  of  the  remuneration 

that  may  be  expected We  are  of  opinion  that  any 

assurance  of  probable  employment  definite  as  to  the  kind 
the  place  and  the  rate  of  wages  is  a promise  of  employment 
within  the  meaning  of  the  statute ” 

It  is  to  be  observed  that  the  amendment  of  the  Act  of 
March  3, 1891,  herein  referred  to  provides  that  those  aliens 
coming  to  the  Untied  States  relying  on  the  promise  of 
employment  were  to  be  treated  as  coming  under  a “con- 
tract.” This  presupposes  that  the  promise  made  and  acted 
upon  should  be  specific  enough  to  lay  the  foundations  at 
least  of  a contractual  obligation.  This  may  be  inferred 
from  the  fact  that  it  was  held  in  the  case  just  cited  that 
the  promise  must  be  definite  as  to  “the  time,  the  place,  and 
the  rate  of  wages.” 

But  the  present  act  does  not  introduce  or  use  the  word 
“contract”  except  in  designating  contract  laborers  as  a 
prohibited  class;  and  in  defining  the  characteristics  by 
which  persons  belonging  to  that  class  are  to  be  distin- 
guished. No  reference  to  the  term  appears  in  section  6. 
Instead  of  providing,  as  did  the  Act  of  1891,  that  a promise 
acted  upon  shall  be  deemed  a promise  or  agreement,  for 
all  that  appears  in  the  advertisement,  there  need  be  no 
more  than  a general  inducement  or  lure  held  out  as  a bait 
to  foreign  laborers  containing  no  specific  terms  of  any 
kind.71 


7iSee  Ante,  p.  223  et  seq. 


The  Existing  Immigration  Law. 


227 


General  Effect  of  Sections  5 and  6. 

The  result  of  the  provisions  of  sections  4,  5 and  6,  taken 
together,  would  seem  to  be  that  an  alien  coming  to  perform 
labor  in  this  country,  relying  on  actual  promise  or  offer, 
is  here  in  violation  of  law,  and  that  if  he  comes  in  reliance 
on  promises  of  employment  contained  in  an  advertisement 
cf  any  kind,  he  is  deemed  to  be  coming  by  agreement,  which 
is  likewise  prohibited;  and  that  the  person  from  whom 
the  offer,  promise,  or  advertisement  emanates  commits  a 
misdemeanor  subjecting  him  to  prosecution  either  civilly 
or  criminally.72 

Sec.  7.  That  no  transportation  company  or  owner  or 
owners  of  vessels,  or  others  engaged  in  transporting  aliens 
into  the  United  States,  shall,  directly  or  indirectly,  either 
by  writing,  printing,  or  oral  representation,  solicit,  invite, 
or  encourage  the  immigration  of  any  aliens  into  the  United 
States,  but  this  shall  not  be  held  to  prevent  transportation 
companies  from  issuing  letters,  circulars  or  advertise- 
ments, stating  the  sailings  of  their  vessels  and  terms  and 
facilities  of  transportation  therein;  and  for  a violation  of 
this  provision,  any  such  transportation  company,  and  any 
such  owner  or  owners  of  vessels,  and  all  others  engaged  in 
transporting  aliens  into  the  United  States,  and  the  agents 
by  them  employed,  shall  be  severally  subjected  to  the  pen- 
alties imposed  by  section  five  of  this  act. 

It  will  be  noted  from  what  has  been  said  above  that  sec- 
tion 6,  although  usually  a “contract  labor”  provision  is 
really  directed  also  against  artificial  or  stimulated,  as 
distinguished  from  natural  immigration.  Section  7 has 
really  nothing  to  do  with  contract  labor — its  only  connec- 
tion with  the  contract  labor  provisions  consists  in  its  prox- 
imity to  them  and  in  the  fact  that  it  looks  to  section  5 

72The  decision  of  the  Board  of  Special  Inquiry  established  under  the 
Act  of  March  3,  1903,  giving  Koreans  the  right  to  land  in  Hawaii  is  not  a 
bar  to  an  action  for  a penalty  for  bringing  them  unlawfully  into  the  United 
States,  brought  under  the  provisions  of  that  act.  Berger  v.  Bishop,  1 U.  S. 
D.  Ct.  Hawaii  405. 


228  The  Exclusion  and  Expulsion  of  Aliens. 

71 

for  the  amount  of  tbe  penalty  imposed  as  well  as  the  collec- 
tion thereof.  From  the  very  nature  of  the  case  it  may  rea- 
sonably be  assumed  that  this  provision  is  more  honored 
in  the  breach  than  in  the  observance;  yet  the  books  contain 
no  reported  case  construing  or  bearing  upon  its  provisions. 
But  little  reflection  is  needed  to  see  why  this  is  so.  Such 
violations  of  this  section  are  necessarily  perpetrated 
largely  if  not  altogether  in  foreign  countries;  so  that  it 
would  be  usually  impossible  to  secure  or  introduce  in  court 
proof  of  such  violations.  It  is  to  be  regretted  that  no  op- 
portunity has  occurred  for  raising  some  of  the  important 
and  legally  interesting  questions  that  generally  are  mooted 
by  this  rather  unique  piece  of  legislation  in  which  the 
effort  is  made  to  punish  in  the  courts  of  this  country  cor- 
porations mostly  of  foreign  origin  for  the  commission  of  an 
offense  which,  while  it  would  in  its  final  results  culminate 
in  the  United  States,  is  planned  and  perpetrated  by  indi- 
viduals operating  in  a foreign  country. 

The  offense  herein  defined  must  in  order  to  be  consum- 
mated contain  the  element  of  migration  by  the  alien  as  the 
result  of  the  transportation  companies’  publications.  The 
mere  fact  of  such  publications  being  made  abroad  and  out- 
side of  the  jurisdiction  of  the  United  States,  aside  from 
being  on  that  account  beyond  the  power  of  Congress  to 
punish73  cannot  be  deemed  of  itself  to  constitute  the  offense 
penalized  by  this  section. 

Sec.  8.  That  any  person,  including  the  master,  agent, 
owner,  or  consignee  of  any  vessel,  who  shall  bring  into  or 
land  in  the  United  States,  by  vessel  or  otherwise,  or  who 
shall  attempt,  by  himself  or  through  another,  to  bring  into 
or  land  in  the  United  States,  by  vessel  or  otherwise,  any 
alien  not  duly  admitted  by  an  immigrant  inspector  or  not 

73See  United  States  v.  Nord  Deutseher  Lloyd,  186  Fed.  391;  American 
Banana  Co.  v.  United  Fruit  Company,  213  U.  S.  347,  53  Law  Ed.  826; 
United  States  v.  Nord  Deutseher  Lloyd,  Supreme  Court  of  the  United  States, 

October  Term,  1911,  56  Law  Ed.  ; but  Congress  can  punish  the  act  if 

it  creates  a condition  operative  within  this  country,  as  the  Supreme  Court 
decision  last  cited  shows.  See  post,  p.  257,  n. 


The  Existing  Immigration  Law. 


229 


lawfully  entitled  to  enter  the  United  States  shall  be 
deemed  guilty  of  a misdemeanor,  and  shall,  on  conviction, 
be  punished  by  a fine  not  exceeding  one  thousand  dollars, 
or  by  imprisonment  for  a term  not  exceeding  two  years, 
or  both  by  such  fine  and  imprisonment  for  each  and  every 
alien  so  landed  or  brought  in  or  attempted  to  be  landed  or 
brought  in. 

This  section  is  virtually  a repetition  of  the  correspond- 
ing section  of  the  Act  of  March  3,  1903.  The  word  person, 
which  is  used  in  the  corresponding  section  (6)  of  the  Act 
of  1891,  prohibiting  the  landing  of  “aliens  not  lawfully  en- 
titled to  enter  the  United  States”  includes  transportation 
companies  conducting  the  business  of  transportation,  by 
either  land  or  water,  so  as  to  make  such  company  liable 
under  the  provisions  of  that  section.  The  officers  or  serv- 
ants of  the  corporation  who  actually  committed,  or  were 
responsible  for  the  violation  of  the  section,  were  held  liable 
to  both  fine  and  imprisonment  thereunder. 

The  purpose  of  this  section  is  to  prevent  the  actual  land- 
ing on  American  soil,  or  the  actual  bringing  to  this  coun- 
try, of  aliens  whose  right  to  land  has  not  been  passed  on 
by  the  proper  immigration  officers,  or  who  are  not  lawfully 
entitled  to  enter  the  country.  It  is,  in  short,  a prohibition 
against  smuggling  foreigners  into  the  United  States  in  de- 
fiance of  immigration  regulations.  It  will  be  observed  that 
the  prohibition  is  against  landing  or  bringing  into  (not 
to)  this  country  any  alien  whose  right  to  enter  has  not 
been  established  in  the  manner  provided  by  the  act.  But 
no  liability  arises  from  the  escape  of  alien  seamen  from 
the  vessel 75  and  the  section  of  the  Act  of  1903  correspond- 
ing to  the  one  under  discussion  was  construed  not  to  apply 
to  the  case  of  alien  seamen  who  on  account  of  sickness  are 
placed  in  hospital  by  their  officers  on  account  of  their 
physical  unfitness  to  accompany  the  vessel  on  her  return 
voyage.76 

^United  States  v.  Burke,  99  ii'ed.  895. 


230  The  Exclusion  and  Expulsion  of  Aliens. 

Sec.  9.  That  it  shall  be  unlawful  for  any  person,  includ- 
ing any  transportation  company  other  than  railway  lines 
entering  the  United  States  from  foreign  contiguous  terri- 
tory, or  the  owner,  master,  agent,  or  consignee  of  any  vessel 
to  bring  to  the  United  States  any  alien  subject  to  any  of  the 
following  disabilities:  idiots,  imbeciles,  epileptics,  or  per- 
sons afflicted  with  tuberculosis  or  with  a loathsome  or  dan- 
gerous contagious  disease,  and  if  it  shall  appear  to  the 
satisfaction  of  the  Secretary  of  Commerce  and  Labor  that 
any  alien  so  brought  to  the  United  States  was  afflicted 
with  any  of  the  said  diseases  or  disabilities  at  the  time  of 
foreign  embarkation  and  that  the  existence  of  such  disease 
or  disability  might  have  been  detected  by  means  of  a com- 
petent medical  examination  at  such  time,  such  person  or 
transportation  company  or  the  master,  agent,  owner,  or 
consignee  of  any  such  vessel  shall  pay  to  the  collector  of 
customs  of  the  customs  district  in  which  the  port  of  ar- 
rival is  located  the  sum  of  one  hundred  dollars  for  each 
and  every  violation  of  the  provisions  of  this  section;  and 
no  vessel  shall  be  granted  clearance  papers  pending  the  de- 
termination of  the  question  of  the  liability  to  the  payment 
of  such  fine,  and  in  such  event  such  fine  is  imposed,  while  it 
remains  unpaid,  nor  shall  such  fine  be  remitted  or  re- 
funded: Provided , That  clearance  may  be  granted  prior 
to  the  determination  of  such  questions  upon  the  deposit 
of  a sum  sufficient  to  cover  such  fine  and  costs,  such  sum 
to  be  named  by  the  Secretary  of  Commerce  and  Labor. 

Nature  of  the  Violation. 

This  section  differs  from  the  preceding  one  in  that  its 
violation  does  not  constitute  a misdemeanor;  and  the  col- 
lection of  the  fine  imposed  by  the  statute,  if  the  conditions 
described  are  determined  administratively  to  exist,  is  not 
to  be  enforced  by  a judicial  proceeding  involving  a criminal 
charge,  but  administratively  through  refusal  of  clearance 

76Niven  v.  United  States,  169  Fed.  782.  The  offense  is  committed  in  the 
district  where  the  alien  is  landed,  and  not  in  that  to  which  he  may  be  later 
brought.  United  States  v.  Capella,  169  Fed.  890. 


The  Existing  Immigration  Law.  231 

to  the  vessel.  The  statute  is  practically  self-executing. 
The  reason  for  this  difference  of  method  is  plain.  Section 
S defines  and  penalizes  the  offense  of  setting  all  the  safe- 
guards created  by  the  act  at  naught,  and  actually  causing 
or  attempting  to  cause  aliens  to  set  foot  in  the  United 
States  without  having  been  passed  upon  by  the  Immigra- 
tion authorities — in  other  words  to  smuggle  in  or  attempt 
to  smuggle  in  foreigners.  The  prohibition  in  the  present 
section  is  directed  against  merely  bringing  to  the  United 
States  for  examination  by  the  immigration  authorities 
aliens  who  at  the  time  of  embarkation  at  the  foreign  port 
the  master  knew,  or  had  reason  to  know,  were  suffering 
from  disabilities  which  would  mean  their  exclusion  and 
return  on  presenting  themselves  for  admission  to  the 
United  States.  In  other  words,  this  provision  is  directed 
against  the  practice  of  shipping  disqualified  aliens  from  a 
foreign  port  on  the  chance  that  at  the  time  of  their  ar- 
rival and  examination  for  admission  here,  they  will  either 
have  recovered  from  the  prevailing  defect  on  the  way  over, 
or,  although  still  suffering  therefrom  at  time  of  examina- 
tion, its  existence  may  escape  detection  by  the  examining 
physician  and  inspection  officers.  Insofar  as  its  provisions 
relate  to  contagious  diseases  the  section  is  also  intended 
to  prevent  the  spread  of  contagion  among  other  passengers 
on  board  the  ship.77 

Inasmuch  as  it  is  in  the  power  of  Congress  to  forbid  the 
importation  of  any  and  all  aliens,  it  is  equally  within  its 
power  to  protect  this  country  against  the  importation  of 
those  who  are  diseased  or  incompetent;  and,  in  order  to 
better  protect  the  United  States  and  to  enforce  its  laws,  it 
may  penalize  the  infringement  thereof  by  parties  the 
direct  fruits  of  whose  negligence  is  felt  on  their  arrival 
at  our  ports,  although  the  negligent  act  originated  within 
a foreign  jurisdiction  over  which  Congress  has  no  control. 
The  provision  that  the  fine  shall  be  imposed  if  the  Secre- 

770ceanic  Steam  Navigation  Co.  v.  Stranahan,  214  U.  S.  320,  53  Law  Ed. 
1013. 


232  The  Exclusion  and  Expulsion  of  Aliens. 

tary  of  Commerce  and  Labor  is  satisfied  that  the  alien’s 
disability  or  disease  could  have  been  detected  at  the  port 
of  departure,  cannot  however,  be  correctly  said  to  consti- 
tute an  attempt  to  assume  jurisdiction  over  persons  for 
acts  of  negligence  occurring  in  a foreign  country.  The 
fine  is  the  penalty  imposed  by  law  on  persons  who  actually 
bring  diseased  aliens  to  the  United  States,  and  who  knew 
or  should  have  known  at  the  time  of  embarkation  that 
under  the  laws  of  this  country  such  aliens  were  not  ad- 
missible. The  act  of  negligently  bringing  them  to  a United 
States  port  is  consummated  in  this  jurisdiction,  and  the 
fact  that  the  continuing  negligence  which  results  in  the  vio- 
lation of  the  law  originated  without  the  territorial  limits 
of  this  country,  cannot  justly  be  construed  to  relieve  the 
party  responsible  therefor  from  the  necessary  result  of  his 
negligence.  And  it  may  be  said  that  although  the  law 
relieves  from  liability  those  who  are  shown  to  have  taken 
in  a foreign  jurisdiction  the  precautions  prescribed  by  the 
statute  the  true  cause  of  exemption  from  liability  consists 
in  the  fact  that  under  those  circumstances  the  diseased 
alien  cannot  be  said  to  have  been  negligently  brought  to 
our  ports.78 

The  Secretary  of  Commerce  and  Labor  the  Sole  Judge  of 
the  Prior  Existence  of  the  Disability. 

The  fine  is  to  be  imposed  “if  it  shall  appear  to  the  satis- 
faction of  the  Secretary  of  Commerce  and  Labor”  that  the 
alien  was  afflicted  and  that  the  existence  of  the  disability 
might  have  been  detected  at  the  time  of  foreign  embarka- 
tion. By  Rule  28  of  the  department79  it  is  provided  that  a 
certificate  shall  be  prepared  by  the  medical  examiner  in 
the  case  stating  whether  in  his  judgment  the  existence  of 
such  disability  or  disease  might  have  been  detected  at  the 
foreign  port.  And  where  the  only  point  at  issue  before  the 

78See  United  States  v.  Nord  Deutscher  Lloyd,  223  U.  S.  118,  56  Law  Ed. 


7»Immigration  rules. 


The  Existing  Immigration  Law. 


233 


Secretary  is  the  medical  question,  the  determination  of  the 
examining  surgeon  would  seem,  for  all  practical  purposes, 
final.  It  may  be  said,  however,  that  the  decision  of  the 
medical  officer  is  relevant  only  insofar  as  it  goes  to  show 
that  a competent  physician  could  or  could  not,  at  the  time 
of  the  alien’s  embarkation,  have  discovered  the  existence  of 
the  disease.  Inasmuch,  however,  as  there  is  nothing  in  the 
act  to  indicate  that  there  is  put  upon  the  transporter  the 
obligation  of  an  absolute  guarantor  as  to  the  condition  of 
the  alien  at  the  time  of  embarkation  it  would  seem  that 
questions  of  fact,  such  as  the  availability  of  a competent 
surgeon,  or  evidence  of  belief  or  of  good  cause  to  believe  on 
the  part  of  the  master  that  he  was  employing  a competent 
surgeon  when  as  a matter  of  fact  he  was  not,  should  be 
proper  subjects  for  the  Secretary’s  consideration. 

The  provision  in  the  Act  of  March  3,  1903,  that  the  impo^ 
sition  of  the  fine  shall  be  conditional  on  the  result  of  the 
medical  examination  at  the  port  of  arrival,  and  not  provid- 
ing for  a hearing  on  the  part  of  the  owners  of  the  vessels 
prior  to  the  imposition  of  the  fine  and  refusal  of  clearance 
papers  until  the  fine  is  paid  was  held  to  be  due  process  of 
law,  and  wholly  within  the  power  of  Congress  to  enact.80 
The  imposition  of  the  fine  under  this  provision  is  an  exer- 
cise of  executive  power  with  which  Congress  may  con- 
stitutionally vest  the  Secretary  of  Commerce  and  Labor, 
as  the  act  committed  is  not  a criminal  offense,  or  even  a 
misdemeanor,  and  the  exaction  of  a fine  does  not  constitute 
the  infliction  of  a punishment.81  But  ship  owners  are  not 
subject  to  the  penalty  for  bringing  diseased  stowaways  who 
came  on  board  without  the  knowledge  of  the  master82  or 
for  bringing  in  an  alien  seaman  who  deserted  into  United 
States  territory  and  while  there  developed  symptoms  of 

8°Oeeanic  Steam  Navigation  Co.  v.  Stranahan,  214  U.  S.  320,  53  Law  Ed. 
1013;  and  see  ante,  p.  132. 

81  Oceanic  Steam  Navigation  Co.  v.  Stranahan,  214  U.  S.  320,  53  Law  Ed. 

1013. 

82Cunard  Steamship  Company  v,  Stranahan,  134  Fed.  318. 


234  The  Exclusion  and  Expulsion  of  Aliens. 


insanity  of  which  no  evidence  had  hitherto  been  mani- 
fested.83 

Rule  28  of  the  Immigration  Regulation  above  referred 
to  reads  as  follows: 

1.  Medical  certificate. — Whenever  an  arriving  alien  is 
found  to  be  afflicted  with  any  of  the  diseases  or  disabilities 
mentioned  in  section  9,  and  in  the  judgment  of  the  medical 
examiner  such  disease  or  disability  existed  at  the  time  of 
foreign  embarkation  and  might  have  been  detected  by 
means  of  a competent  medical  examination  at  such  time, 
he  shall  so  certify. 

2.  Notice  to  mastery  etc. — Upon  the  receipt  of  such  a 
certificate  the  officer  in  charge  shall  promptly  serve  upon 
the  master,  agent,  owner  or  consignee  of  the  vessel  upon 
which  said  alien  arrived  a notice  to  the  effect  that  the  as- 
certained facts  indicate  that  a fine  should  be  imposed  under 
section  9 ; that  he  will  be  allowed  sixty  days’  time  from  the 
date  of  service  of  the  notice  within  which  to  submit  evi- 
dence or  be  heard  in  reference  to  this  matter ; and  that  in 
the  meantime  the  vessel  on  which  the  alien  arrived  will  be 
granted  clearance  papers,  upon  condition  that  he  deposit 
with  the  collector  of  customs,  prior  to  the  time  of  sailing, 
the  sum  of  $100  as  security  for  the  payment  of  such  fine, 
should  it  be  imposed. 

3.  Service  of  notice. — Such  notice  shall  be  prepared  in 
triplicate.  The  original  shall  be  served  on  the  master, 
agent,  owner  or  consignee  of  the  vessel  either  by  (1)  de- 
livering it  to  him  in  person  or  (2)  leaving  it  at  his  office  or, 
whenever  the  immigration  officer  in  charge  finds  either  of 
these  methods  of  service  inconvenient,  by  (3)  mailing  it  to 
him.  When  service  is  made  by  delivery,  it  shall  be  ad- 
mitted in  writing  upon  the  duplicate  and  triplicate  and  the 
admission  witnessed  by  the  server.  If  admission  be  re- 
fused, or  in  case  of  service  by  either  of  the  other  methods, 
the  server  shall  note  the  method  and  date  of  service  on  the 

,83Urank  Waterhouse  & Co,  y.  United  States,  159  Fed.  876. 


The  Existing  Immigration  Law.  235 

duplicate  and  triplicate.  The  duplicate  shall  be  retained 
by  the  immigration  officer  in  charge.  The  triplicate  shall 
be  delivered  to  the  collector  of  customs  for  the  district 
wherein  the  port  of  arrival  is  located,  who  shall  withhold 
clearance  papers  until  the  deposit  is  made. 

4.  Submission  of  evidence  and  report . — If  said  deposit 
be  made,  further  proceedings  shall  be  suspended  during 
said  period  of  sixty  days  or  until  earlier  submission  or  evi- 
dence to  show  why  said  fine  should  not  be  imposed.  Such 
evidence,  if  submitted,  shall  be  forwarded  to  the  Bureau, 
together  with  the  medical  certificate  and  the  duplicate 
notice,  and  the  officer  in  charge  shall  at  the  same  time  pre- 
sent his  written  views  as  to  whether  the  fine  should  be 
imposed.  If  within  sixty  days  no  evidence  has  been  sub- 
mitted, or  as  soon  as  it  is  known  that  the  fine  will  not  be 
contested,  the  officer  in  charge  shall  report  the  facts  to  the 
Bureau. 

5.  Action  on  decision. — Upon  receipt  of  departmental 
decision  the  collector  of  customs  shall  be  notified  of  its 
terms.  If  the  fine  is  imposed,  the  amount  deposited  as 
security  shall  be  accounted  for  by  the  collector.  If  the 
fine  is  not  imposed,  he  shall  return  such  amount. 

Refusal  of  Clearance  Papers. 

The  provision  on  this  subject  is  somewhat  different  from 
the  corresponding  section  in  the  Act  of  1903,  which  pro- 
vided merely  that  no  vessel  should  be  cleared  while  any 
fine  imposed  remained  unpaid.  The  result  of  the  change 
of  language  would  seem  to  be  that  vessels  may  now  be  re- 
fused clearance  pending  the  determination  of  the  fact 
whether  or  not  a fine  has  been  incurred,  as  well  as  after  im- 
position of  the  fine  and  pending  payment  thereof.  Clear- 
ance may,  however,  be  granted  prior  to  the  determination 
of  these  questions  on  deposit  of  a sum  sufficient  to  cover 
both  the  fine  and  “costs.”  Section  9 of  the  Act  of  March 
3,  1903,  limited  the  application  of  the  fine  to  cases  where 
aliens  afflicted  with  a loathsome  or  dangerous  contagious 


236  The  Exclusion  and  Expulsion  of  Aliens. 

disease  were  brought  to  the  United  States ; but  this  section 
extends  the  liability  to  cases  where  idiots,  imbeciles,  epi- 
leptics, or  persons  affected  with  tuberculosis  are  brought 
to  this  country.  Under  the  Act  of  1903  the  liability  was 
held  not  to  have  been  incurred  by  bringing  in  a diseased 
alien  stowaway,  who  came  aboard  without  the  knowledge 
of  the  master  at  a foreign  port.84  Under  earlier  acts  the  lia- 
bility of  the  master  was  held  to  be  limited  to  duties  con- 
nected with  the  importation  of  alien  immigrants.85  Grant- 
ing that  his  duties  under  this  section  extend  to  all  aliens,  to 
hold  him  liable  for  the  presence  at  the  ports  of  this  country 
of  alien  stowaways  would  be  to  make  him  an  absolute 
insurer  undqr  the  act;  a construction  which  it  is  thought 
neither  the  language  nor  the  intent  of  the  provision  calls 
for.  Nor  does  the  master’s  liability  extend  to  a case  where, 
during  the  time  an  alien  seaman  was  a member  of  a ves- 
sel’s crew,  he  deserted  to  United  States  territory,  and  while 
there,  developed  insanity,  there  having  existed  no  evidence 
of  insanity  or  of  any  indications  from  which  it  might  have 
been  reasonably  inferred  that  he  was  of  unsound  mind 
during  the  time  of  his  service  as  a seaman.86 

Sec.  10.  That  the  decision  of  the  board  of  special  inquiry, 
hereinafter  provided  for,  based  upon  the  certificate  of  the 
examining  medical  officer,  shall  be  final  as  to  the  rejection 
of  aliens  affected  with  tuberculosis  or  with  a loathsome 
or  dangerous  contagious  disease,  or  with  any  mental  or 
physical  disability  which  would  bring  such  aliens  within 
any  of  the  classes  excluded  from  admission  to  the  United 
States  under  section  two  of  this  act. 

This  section  adds  one  more  class  to  those  enumerated  in 
the  corresponding  section  of  the  preceding  act — aliens  af- 
flicted with  tuberculosis. 

The  subject  of  the  finality  of  the  board’s  decision  herein 
provided  can  be  best  considered  in  connection  with  section 

84Cunard  S.  S.  Co.  v.  Stranahan,  134  Fed.  318. 

85United  States  v.  Sandrey,  48  Fed.  550. 

seFrank  Waterhouse  & Co.  v.  United  States,  159  Fed.  876. 


The  Existing  Immigration  Law. 


237 


25  of  the  act,  which  provides  that  the  “Boards  of  special 
inquiry  shall  be  appointed for  the  prompt  determina- 
tion of  all  cases  of  all  immigrants  detained under  the 

provisions  of  law Such  boards  shall  have  authority 

to  determine  whether  an  alien  who  has  been  duly  held 

shall  be  allowed  to  land  or  shall  be  deported That 

in  every  case  where  an  alien  is  excluded  from  admission 

the  decision  of  the  appropriate  immigration  officers, 

if  adverse , shall  be  final,  unless  reversed  on  appeal 

to  the  Secretary  of  Commerce  and  Labor;  but  nothing  in 
this  section  shall  be  construed  to  admit  of  any  appeal  in 
the  case  of  any  alien  rejected  as  provided  for  in  section  10 
of  this  act.” 

This  last  limiting  clause  does  not  appear  in  section  25 
of  the  preceding  act.  It  appears  to  have  been  inserted  to 
prevent  raising  the  question  that  the  right  of  appeal  from 
the  board  provided  in  this  section  should  be  read  to  apply 
to  section  10. 

Following  the  provision  of  section  10,  the  board’s  de- 
cision has  been  held  final  as  to  the  existence  of  the  dis- 
ease.87 A later  case88  held  that  the  word  “final”  in  section 
10  of  the  Act  of  1903  is  used  in  a restricted  sense  and  does 
not  deprive  those  who  are  parties  to  the  cases  described  in 
that  section  of  the  privilege  of  appeal  so  unqualifiedly  con- 
ferred by  section  25  of  that  act.  The  final  clause  in  section 
25  of  the  present  act  “shows  that  the  exclusion  of  aliens  as 
provided  for  in  section  10  from  the  privilege  of  appeal 
granted  in  all  cases  in  section  25  was  thought  desirable  by 
Congress.”  89  But  the  board’s  decision  is  not  final  under 
this  section  when  not  based  exclusively  on  the  certificate 
of  the  medical  officer  making  the  examination,  and  where 
there  was  raised  the  additional  question  of  whether  the 
person  excluded  was  in  fact  subject  to  exclusion  under  the 

In  re  Neuwirth,  123  Fed.  347. 

ssRodgers  v.  United  States,  157  Fed.  381. 

**Tbid.  ! 


238  The  Exclusion  and  Expulsion  of  Aliens. 


Act  of  1903. 90  An  expression  ( obiter ) by  the  Supreme 
Court  seems  to  sustain  the  view  adopted  by  the  court  in  the 
decision  above  referred  to91  that  the  finding  of  the  Board 
of  Inquiry  under  the  Act  of  March  3,  1903,  was  appealable 
even  where  it  was  to  the  effect  that  the  applicant  had 
trachoma,  which  the  petition  designated  as  a dangerous 
contagious  disease — the  very  words  of  section  10.92  How- 
ever, the  limiting  clause  in  section  25  of  the  present  act 
makes  the  decision  of  the  board  absolutely  final  in  the 
classes  of  cases  therein  designated — provided  that  the  ex- 
cluding decision  is  based  on  the  medical  certificate.93 

Finality  of  the  Decision  of  Boards  of  Special  Inquiry  Re- 
jecting Aliens  Mentally  or  Physically  Disqualified. 

All  aliens  suffering  from  mental  or  physical  disabilities 
referred  to  in  this  section  are,  with  certain  exceptions  to 
be  discussed  later,  excluded  from  the  right  of  appeal  to  the 
Secretary  of  Commerce  and  Labor  granted  other  aliens 
who  are  not  thus  afflicted,  provided  that  the  excluding 
decision  of  a board  of  special  inquiry  is  based  on  the  cer- 
tificate of  the  examining  medical  officer.  Rule  17  follows 
the  section  in  providing  that  when  the  decision  of  the 
board  is  based  on  such  certificate  there  is  no  right  of  ap- 
peal. Subdivision  4 of  Rule  1794  reads  as  follows : No  ap- 
peal lies  where  the  decision  of  a board  of  special  inquiry, 
based  solely  on  the  certificate  of  the  examining  medical 
officer  rejects  an  alien  because  either  (1)  he  is  afflicted  with 
tuberculosis  or  a loathsome  or  dangerous  contagious  dis- 
ease, or  (2)  he  is  an  idiot  or  an  imbecile  or  an  epileptic  or 
is  insane  or  feeble-minded,  or  (3)  he  has  been  insane 
within  five  years  previously  or  has  had  two  or. more  at- 
tacks of  insanity  at  any  time  previously,  or  (4)  he  has  any 
mental  defect  which  may  affect  his  ability  to  earn  a living 
or  render  him  likely  to  become  a public  charge. 

win  re  Nakashima,  160  Fed.  842. 

siRodgers  v.  United  States,  In  re  Nakashima,  supra. 

»2Zartarian  v.  Billings,  204  U.  S.  170,  51  Law  Ed.  428. 

»3United  States  v.  Rodgers,  182  Fed.  274. 

^Immigration  Rules,  pages  33-34. 


The  Existing  Immigration  Law. 


239 


In  a note  subjoined  to  these  two  subdivisions95  it  is 
stated  “where  a medical  certificate  shows  that  an  alien  is 
afflicted  with  the  disabilities  mentioned  in  subdivision  4, 
the  Board  is  virtually  compelled  to  base  its  decision  upon 
that  certificate,  because  whether  or  not  an  alien  is  so 
afflicted  is  purely  a matter  of  medical  science.” 

It  would  seem  that  the  only  question  that  determines 
the  existence  of  the  right  of  appeal  is  one  of  fact  as  to 
whether  the  certificate  is  the  actual  basis  of  the  decision. 
It  is  true  that  a decision  rendered  by  the  board  excluding 
an  alien  on  the  ground  of  being  a consumptive,  or  affected 
with  a loathsome  or  dangerous  contagious  disease,  must, 
in  the  nature  of  things,  be  based  on  the  medical  certificate 
affirming  the  fact,  for  the  reason  that  trustworthy  evi- 
dence of  disease  reveals  itself  as  such  only  to  the  experi- 
enced eye  of  the  medical  practitioner.  On  the  other  hand 
insanity  often — though  by  no  means  always — presents 
itself  as  a fact  to  the  layman  with  the  same  conviction  as 
it  does  to  the  expert  alienist;  and  occasionally  absolutely 
conceals  its  existence  from  the  one  as  well  as  from  the 
other.  The  detection  of  epilepsy  on  the  contrary,  except 
in  the  moment  of  demonstration,  would  seem  to  be  the 
work  of  the  physician  rather  than  of  the  layman. 

But  it  is  safe  to  say  that  idiocy,  imbecility  or  feeble- 
mindedness, in  the  common  acceptance  of  those  terms, 
reveal  themselves  as  readily  to  the  observation  of  the  lay- 
man as  to  that  of  the  physician;  and  it  is  equally  safe  to 
say  that  the  members  of  a board  of  special  inquiry,  in 
reaching  an  unfavorable  decision  as  to  the  admission  of  an 
idiot,  an  imbecile,  or  a person  of  feeble  mental  faculties 
could  do  so  as  conscientiously  and  readily  in  the  absence 
of  the  medical  examiner  as  they  could  determine  whether 
or  not,  in  a given  case,  a blind  man  stood  before  them. 
It  seems  doubtful  whether,  in  such  cases  as  these,  where 
as  an  almost  invariable  rule  the  mental  infirmity  is  only 

^Immigration  Laws,  Rules  of  November  15,  1911,  1st  Ed.,  p.  34. 


240  The  Exclusion  and  Expulsion  of  Aliens. 

too  clearly  apparent,  an  opinion  could  be  rendered  based 
entirely  on  the  certificate  of  the  medical  officer. 

Yet,  that  portion  of  the  note  to  subdivisions  4 and  5 
above  cited  provides  in  effect  that  in  rendering  decisions 
in  such  cases — those  where  a medical  certificate  shows 
lhat  the  alien  is  an  idiot,  an  imbecile,  feeble-minded,  or 
has  been  insane  within  5 years  previously,  or  has  had  two 
or  more  attacks  at  any  time  previously  or  has  any  mental 
defect  which  may  affect  his  ability  to  earn  a living  or 
render  him  likely  to  become  a public  charge — the  Board 
of  Special  Inquiry  is  virtually  forced  to  base  its  decision 
on  that  certificate. 

If  this  provision  is  to  be  taken  as  a rule  to  which 
members  of  boards  must  adhere  in  passing  on  the  cases 
of  aliens  so  afflicted  it  is  tantamount  to  a declaration  that 
no  such  aliens  shall  in  any  case  be  allowed  to  appeal  from 
the  excluding  decision  of  the  boards.  It  is  not  denied  that 
in  rare  and  doubtful  cases  of  this  description  the  members 
of  boards  may  be  justified  in  throwing  the  responsibility 
of  deciding  on  the  medical  examiner,  thus  in  effect  basing 
their  decision  on  his  certificate.  But  no  authority,  it  is 
thought,  is  conferred  by  section  10,  or  by  any  other  section 
of  this  act,  whereby  the  Secretary  of  Commerce  and  Labor 
is  empowered  to  lay  down  as  a matter  of  law  that  the  de- 
cisions of  boards  rendered  in  such  cases  are  to  be  perforce 
based  on  the  medical  certificate,  and  that  consequently 
persons  found  to  be  afflicted  as  above  stated  are  barred 
from  the  right  of  appeal.  The  alien  is  entitled  to  the 
honest  opinion  of  the  inspecting  officers  wholly  untrarn- 
meled  by  any  instructions  or  rules  not  authorized  by  the 
statute.96 

The  note  on  page  34  of  the  Immigration  Rules  already 
referred  to  continues:  “The  cases  intended  to  be  covered 
by  subdivision  5”  (where  the  excluding  decision  is  based 
solely  on  a medical  certificate  showing  the  existence  of  a 
physical  infirmity  not  such  as  to  preclude  the  possibility 


»6 In  re  Kornmehl,  87  Fed.  314. 


The  Existing  Immigration  Law. 


241 


of  the  alien’s  admission  on  bond)  “stand  on  a somewhat 
different  footing.  It  applies  only  to  physical  disabilities 
other  than  tuberculosis  and  loathsome  or  dangerous  con- 
tagious diseases Whether  or  not  these  will  affect 

ability  to  earn  a living  is  partly  a medical  and  partly  a 
practicable  question.  If  in  such  instances  the  board  cares 
to  rely  solely  on  the  medical  certificate  and  to  exclude,  the 
alien  is  thereby  deprived  of  his  right  of  appeal,  but  he 
may  still  request  admission  on  bond.  Such  is  the  com- 
bined effect  of  sections  10  and  26,  to  carry  out  which  sub- 
division 5 is  intended.  Instances  of  this  kind,  however, 
are  likely  to  be  rare  because  in  case  of  physical  defects  of 
the  character  mentioned  the  Board  is  not  confined  to  the 
medical  certificate  but  may  consider  all  . the  surrounding 
circumstances;  and  where  upon  all  the  facts,  including 
the  medical  certificate  it  decides  that  the  alien  is  suffer- 
ing from  a physical  defect  which  will  affect  his  ability  to 
earn  a living  the  right  of  appeal  exists.” 

In  a foot-note  to  the  former  rule  6 of  the  Immigration 
Laws  and  Regulations  of  July  1,  1907,  13th  Edition,  May 
4,  1911,  it  was  left  to  Boards  of  Inquiry  to  determine  of 
their  own  judgment  in  connection  with  the  medical  cer- 
tificate whether  or  not  the  alien  has  been  insane  within 
five  years  previous  to  his  arrival,  or  has  had  two  or  more 
attacks  of  insanity  previously,  or  whether  he  had  any 
mental  or  physical  defect  which  may  affect  his  ability  to 
earn  a living  or  render  him  likely  to  become  a public 
charge.  As  appears  from  the  quotations  made  above  this 
provision  is  omitted  in  the  departmental  rules  and  regu- 
lations now  in  force — unfortunately,  it  is  thought,  since  it 
seems  not  unreasonable  to  take  the  view  that  any  case 
coming  within  the  classification  covered  by  the  old  rule 
just  cited  is  more  than  likely  to  involve  a mixed  question 
of  fact  and  medical  science;  and  the  most  natural  inter- 
pretation of  the  provisions  of  section  10  of  the  act  would 
seem  to  be  that  it  was  the  intent  of  Congress  not  to  de- 
prive an  alien  of  the  right  of  appeal  generally  granted  by 


242  The  Exclusion  and  Expulsion  of  Aliens. 

section  25  when  the  Board’s  decision  was  based  no  matter 
in  how  small  a degree  on  questions  of  fact. 

The  conclusion  to  be  drawn  from  an  examination  of  the 
rules  appears  to  be 

( 1 ) That  when  the  physical  defect  from  which  the  alien 
suffers  is  tuberculosis  or  a loathsome  or  dangerous  con- 
tagious disease  the  decision  of  the  board  must  be  based 
on  the  medical  certificate,  and  that  consequently  the  alien 
has  no  right  of  appeal;  but  where  the  physical  defect  is 
one  which  may  affect  the  liability  of  the  alien  to  earn  a 
living  the  question  to  be  determined  is  a practical  one 
quite  as  much  as  a medical  one  and  that  the  Board  is  not 
therefore  bound  to  base  its  decision  on  the  certificate  of 
a medical  officer.  If  based  thereon,  however,  the  effect  is 
to  deny  the  alien  the  right  of  appeal. 

(2)  That  when  the  mental  defect  from  which  the  alien 
is  suffering  is  idiocy,  imbecility,  epilepsy,  insanity  or  fee- 
ble-mindedness, the  decision  of  the  Board  must  be  based 
on  the  certificate  of  the  examining  medical  officer,  and  the 
right  of  appeal  is  therefore  denied;  and  that  the  same  re- 
sult follows  when  the  mental  defect  is  not  one  of  those 
mentioned,  and  is  certified  to  by  the  examining  surgeon  as 
being  such  as  to  be  likely  to  render  the  alien  a public 
charge  or  affect  his  ability  to  earn  a living,  or  where  pre- 
vious insanity  or  previous  attacks  thereof  are  certified  to 
by  the  examining  surgeon. 

While  the  wording  of  section  10  might  seem  to  imply 
that  even  in  case  of  tuberculosis  or  other  loathsome  or 
other  dangerous  contagious  diseases  it  would  be  possible 
for  a Board  to  render  an  opinion  independent  of  the  medi- 
cal certificate,  rule  17,  insofar  as  it  applied  to  such  cases, 
appears  in  the  matter  of  general  practice  and  application, 
at  least,  to  follow  the  law.  But  for  the  reasons  already 
given  it  seems  that  for  the  Secretary  of  Commerce  and 
Labor  to  insist — if  indeed  the  presence  of  the  foot-note  to 
the  present  rules  and  regulations  in  force  is  to  be  con- 
sidered as  mandatory  in  effect — that  in  the  case  of  aliens 


The  Existing  Immigration  Law. 


243 


classified  in  subdivison  4 of  rule  17  of  these  regulations 
excluding  opinions  must  as  a matter  of  law  be  based  on 
the  accompanying  medical  certificate  is  to  step  outside  the 
authority  conferred  on  him  for  the  promulgation  of  rules 
to  exact  due  enforcement  of  the  act. 

Sec.  11.  That  upon  the  certificate  of  a medical  officer 
of  the  United  States  Public  Health  and  Marine  Hospital 
Service  to  the  effect  that  a rejected  alien  is  helpless  from 
sickness,  mental  or  physical  disability,  or  infancy,  if  such 
alien  is  accompanied  by  another  alien  whose  protection 
or  guardianship  is  required  by  such  rejected  alien,  such 
accompanying  alien  may  also  be  excluded,  and  the  master, 
agent,  owner,  or  consignee  of  the  vessel  in  which  such 
alien  and  accompanying  alien  are  brought  shall  be  re- 
quired to  return  said  alien  and  accompanying  alien  in 
the  same  manner  as  vessels  are  required  to  return  other 
rejected  aliens. 

Buie  5 of  the  Immigration  Kules  provides  that  where 
in  the  estimation  of  the  appropriate  immigration  officials 
an  alien  likely  to  be  rejected  as  helpless  under  section  11 
arrives  accompanied  by  one  or  more  aliens  whose  protec- 
tion or  guardianship  he  will,  if  rejected,  require,  one  of 
such  accompanying  aliens  (preferably  a relative  or 
natural  guardian)  shall  be  detained  and  the  determina- 
tion of  his  case  may  be  postponed  until  after  that  of  the 
alien  whom  he  accompanies 


Sec.  12.  That  upon  the  arrival  of  any  alien  by  water  at 
any  port  within  the  United  States  it  shall  be  the  duty  of 
the  master  or  commanding  officer  of  the  steamer,  sailing 
or  other  vessel  having  said  alien  on  board  to  deliver  to  the 
immigration  officers  at  the  port  of  arrival  lists  of  mani- 
fests made  at  the  time  and  place  of  embarkation  of  such 
alien  on  board  such  steamer  or  vessel,  which  shall,  in 
answer  to  questions  at  the  top  of  said  list,  state  as  to  each 
alien  the  full  name,  age,  and  sex;  whether  married  or 
single ; the  calling  or  occupation ; whether  able  to  read  or 
write;  the  nationality;  the  race;  the  last  residence;  the 


244  The  Exclusion  and  Expulsion  of  Aliens. 


name  and  address  of  the  nearest  relative  in  the  country 
from  which  the  alien  came ; the  seaport  for  landing  in  the 
United  States;  the  final  destination,  if  any,  beyond  the 
port  of  landing;  whether  having  a ticket  through  to  such 
final  destination;  whether  the  alien  has  paid  his  own 
passage  or  whether  it  has  been  paid  by  any  other  person 
or  by  any  corporation,  society,  municipality,  or  govern- 
ment, and  if  so,  by  whom;  whether  in  possession  of  fifty 
dollars,  and  if  less,  how  much;  whether  going  to  join  a 
relative  or  friend,  and  if  so,  what  relative  or  friend,  and 
his  or  her  name  and  complete  address;  whether  evqr 
before  in  the  United  States,  and  if  so,  when  and  where; 
whether  ever  in  prison  or  almshouse  or  an  institution  or 
hospital  for  the  care  and  treatment  of  the  insane  or  sup- 
ported by  charity;  whether  a polygamist;  whether  an 
anarchist;  whether  coming  by  reason  of  any  offer,  solici- 
tation, promise,  or  agreement,  express  or  implied,  to  per- 
form labor  in  the  United  States,  and  what  is  the  alien’s 
condition  of  health,  mental  and  physical,  and  whether  de- 
formed or  crippled,  and  if  so,  for  how  long  and  from  what 
cause;  that  it  shall  further  be  the  duty  of  the  master  or 
commanding  officer  of  every  vessel  taking  alien  passengers 
out  of  the  United  States,  from  any  port  thereof,  to  file 
before  departure  therefrom  with  the  collector  of  customs 
of  such  port  a complete  list  of  all  such  alien  passengers 
taken  on  board.  Such  list  shall  contain  the  name,  age, 
sex,  nationality,  residence  in  the  United  States,  occupa- 
tion, and  the  time  of  last  arrival  of  every  such  alien  in  the 
United  States,  and  no  master  of  any  such  vessel  shall  be 
granted  clearance  papers  for  his  vessel  until  he  has  de- 
posited such  list  or  lists  with  the  collector  of  customs  at 
the  port  of  departure  and  made  oath  that  they  are  full  and 
complete  as  to  the  name  and  other  information  herein  re- 
quired concerning  each  alien  taken  on  board  his  vessel; 
and  any  neglect  or  omission  to  comply  with  the  require- 
ments of  this  section  shall  be  punishable  as  provided  in 
section  fifteen  of  this  Act.  That  the  collector  of  customs 
wfith  whom  any  such  list  has  been  deposited  in  accordance 
with  the  provisions  of  this  section,  shall  promptly  notify 
the  Commissioner-General  of  Immigration  that  such  list 
has  been  deposited  with  him  as  provided  by  regulations  to 
be  issued  by  the  Commissioner-General  of  Immigration 
with  the  approval  of  fhe  Secretary  of  Commerce  and 


The  Existing  Immigration  Law. 


245 


Labor : Provided , That  in  the  case  of  vessels  making  regu- 
lar trips  to  ports  of  the  United  States  the  Commissioner- 
General  of  Immigration,  with  the  approval  of  the  Secre- 
tary of  Commerce  and  Labor,  may,  when  expedient,  ar- 
range for  the  delivery  of  such  lists  of  outgoing  aliens  at  a 
later  date : Provided  further , that  it  shall  be  the  duty  of 
the  master  or  commanding  officer  of  any  vessel  sailing 
from  ports  in  the  Philippine  Islands,  Guam,  Porto  Rico, 
or  Hawaii  to  any  port  of  the  United  States  on  the  North 
American  Continent  to  deliver  to  the  immigration  officers 
at  the  port  of  arrival  lists  or  manifests  made  at  the  time 
and  place  of  embarkation,  giving  the  names  of  all  aliens 
on  board  said  vessel. 

Like  the  corresponding  section  of  the  preceding  act  this 
section  provides  for  delivery  by  the  master  of  the  vessel  to 
immigration  officers  of  lists  or  manifests  of  alien  passen- 
gers at  the  time  and  place  of  their  embarkation  on  board 
such  vessel.  As  to  what  the  manifest  shall  contain  with 
regard  to  each  alien  so  embarking  there  exists  but  slight 
difference  between  this  and  the  corresponding  section  of 
the  previous  act;  the  only  additional  requirement  being 
that  the  name  and  address  of  the  nearest  relative  in  the 
country  from  which  the  alien  came  shall  appear  in  the 
manifest.  But  it  also  requires  the  filing  of  a similar  mani- 
fest or  list  of  alien  passengers  taken  out  of  the  United 
States,  the  object  being  to  collate  statistics  on  emigration 
of  foreigners  for  comparison  with  those  regarding  immi- 
gration. In  order  to  collect  the  emigration  statistics 
promptly  and  with  the  least  possible  interference  with 
outbound  vessels  the  department  has  promulgated  a regu- 
lation97 whereunder  the  required  data  are  required  to  be 
written  on  a detachable  coupon  of  the  ticket  sold  outgoing 
alien  passengers,  such  coupon  being  detached  from  the 
ticket  as  the  alien  goes  aboard  the  ship  and  filed  with  the 
immigration  officials  in  lieu  of  “list  or  manifest.” 

It  has  been  held  that  for  the  agent  of  a steamship  com- 


97Revised  Statistical  Rule  19. 


246  The  Exclusion  and  Expulsion  of  Aliens. 


pany  to  ticket  an  alien  desirous  of  coming  to  the  United 
States  at  Halifax,  stating  that  he  could  come  to  this  coun- 
try without  extra  charge  would  constitute  a violation  of 
this  section  on  the  part  of  the  steamship  officers  so  doing.98 

Sec.  13.  That  all  aliens  arriving  by  water  at  the  ports 
of  the  United  States  shall  be  listed  in  convenient  groups, 
and  no  one  list  or  manifest  shall  contain  more  than  thirty 
names.  To  each  alien  or  head  of  a family  shall  be  given 
a ticket  on  which  shall  be  written  his  name,  a number  or 
letter  designating  the  list  in  which  his  name,  and  so  forth, 
is  contained,  and  his  number  on  said  list,  for  convenience 
of  identification  on  arrival.  Each  list  or  manifest  shall 
be  verified  by  the  signature  and  the  oath  of  (or)  affirma- 
tion of  the  master  or  commanding  officer,  or  the  first  or 
second  below  him  in  command,  taken  before  an  immigra- 
tion officer  at  the  port  of  arrival,  to  the  effect  that  he  has 
caused  the  surgeon  of  said  vessel  sailing  therewith  to 
make  a physical  and  oral  examination  of  each  of  said 
aliens,  and  that  from  the  report  of  said  surgeon  and  from 
his  own  investigation  he  believes  that  no  one  of  said  aliens 
is  an  idiot,  or  imbecile,  or  a feeble-minded  person,  or  in- 
sane person,  or  a pauper,  or  is  likely  to  become  a public 
charge,  or  is  afflicted  with  tuberculosis  or  with  a loath- 
some or  dangerous  contagious  disease,  or  is  a person  who 
has  been  convicted  of,  or  who  admits  having  committed 
a felony  or  other  crime  or  misdemeanor  involving  moral 
turpitude,  or  is  a polygamist  or  one  admitting  belief  in  the 
practice  of  polygamy,  or  an  anarchist,  or  under  promise 
or  agreement,  express  or  implied,  to  perform  labor  in  the 
United  States,  or  a prostitute,  or  a woman  or  girl  coming 
to  the  United  States  for  the  purpose  of  prostitution,  or 
for  any  other  immoral  purpose,  and  that  also,  according 
to  the  best  of  his  knowledge  and  belief,  the  information  in 
said  lists  or  manifests  concerning  each  of  said  aliens 
named  therein  is  correct  and  true  in  every  respect. 

This  section  is  a repetition  of  the  corresponding  section 
of  the  Act  of  1903  except  insofar  as  the  incorporation  in 
section  2 of  certain  additional  excluded  classes  has  made 

98United  States  v.  Fielding,  175  Fed.  290. 


The  Existing  Immigration  Law.  247 

necessary  additions  to  this  section  regarding  the  scope  of 
the  oath  of  the  ships’  officers  regarding  the  status,  physi- 
cal, mental,  moral  or  otherwise  of  the  aliens  whose  names 
are  given  in  the  manifest. 

Sec.  14.  That  the  surgeon  of  said  vessel  sailing  there- 
with shall  also  sign  each  of  said  lists  or  manifests  and 
make  oath  or  affirmation  in  like  manner  before  an  immi- 
gration officer  at  the  port  of  arrival,  stating  his  profes- 
sional experience  and  qualifications  as  a physician  and 
surgeon,  and  that  he  has  made  a personal  examination  of 
each  of  the  said  aliens  named  therein,  and  that  the  said 
list  or'  manifest,  according  to  the  best  of  his  knowledge 
and  belief,  is  full,  correct,  and  true  in  all  particulars  rela- 
tive to  the  mental  and  physical  condition  of  said  aliens. 
If  no  surgeon  sails  with  any  vessel  bringing  aliens  the 
mental  and  physical  examinations  and  the  verifications 
of  the  lists  or  manifests  shall  be  made  by  some  competent 
surgeon  employed  by  the  owners  of  the  said  vessel 

Subdivision  5 of  Rule  2 provides  that,  when  there  is  not 
a surgeon  on  board,  the  certificate  (unverified)  of  a repu- 
table surgeon  located  at  the  point  of  embarkation  or  at 
the  last  port  of  call  in  the  form  appearing  on  the  reverse 
side  of  the  manifest,  shall  be  a sufficient  proof  of  compli- 
ance with  the  requirements  of  section  14  that  when  no  sur- 
geon sails  with  the  vessel*  bringing  aliens,  their  mental 
and  physical  examination  shall  be  made  by  some  compe- 
tent surgeon  employed  by  the  owners  of  the  said  vessel. 

Sec.  15.  That  in  the  case  of  the  failure  of  the  master  or 
commanding  officer  of  any  vessel  to  deliver  to  the  said  im- 
migration officers  lists  or  manifests  of  all  aliens  on  board 
thereof,  as  required  in  sections  twelve,  thirteen,  and  four- 
teen of  this  Act,  he  shall  pay  to  the  collector  of  customs  at 
the  port  of  arrival  the  sum  of  ten  dollars  for  each  alien 
concerning  whom  the  above  information  is  not  contained 
in  any  list  as  aforesaid:  Provided,  That  in  the  case  of 
failure  without  good  cause  to  deliver  the  list  of  passengers 
required  by  section  twelve  of  this  Act  from  the  master  or 
commanding  officer  of  every  vessel  taking  alien  passengers 


248  The  Exclusion  and  Expulsion  of  Aliens. 


out  of  the  United  States,  the  penalty  shall  be  paid  to  the 
collector  of  customs  at  the  port  of  departure  and  shall  be 
a fine  of  ten  dollars  for  each  alien  not  included  in  said  list ; 
but  in  no  case  shall  the  aggregate  fine  exceed  one  hundred 
dollars. 

This  section  contains  as  to  the  master  or  commanding 
officer  of  incoming  vessels  the  same  provision  as  the  cor- 
responding section  of  the  preceding  act  regarding  the  im- 
position of  a penalty  of  ten  dollars  for  each  alien  concern- 
ing whom  the  information  required  in  sections  12,  13,  and 
14  is  not  provided.  In  addition  it  provides  a similar 
penalty  for  the  violation  of  so  much  of  section  12  of  this 
act  as  related  to  vessels  taking  alien  passengers  out  of  the 
United  States. 

The  obligation  of  the  master  of  a vessel  bringing  aliens 
to  the  United  States  is  twofold  with  respect  to  manifests : 
First,  to  deliver  manifests  of  all  aliens ; Second,  to  see  that 
they  contain  the  information  required  by  sections  12,  13 
and  14.  He  is  at  liberty  to  group  the  names  of  aliens  and 
the  data  regarding  them  but  must  not  put  more  than  30 
names  on  a single  sheet.  Failure  to  present  a manifest 
with  regard  to  any  one  of  the  aliens,  or  failure  to  give  re- 
garding any  one  of  them  the  information  required  renders 
him  liable  to  a fine  of  ten  dollars  in  each  instance. 

It  would  seem  that  in  the  case  of  all  outgoing  passen- 
gers one  general  list  is  all  that  is  required.  The  penal 
provision  in  section  15  does  not  apparently  penalize  the 
failure  to  deliver  the  list,  but  failure  to  include  informa- 
tion therein  as  to  each  outgoing  alien,  inasmuch  as  the 
amount  of  the  fine  is,  to  a limited  extent,  made  to  depend 
on  the  number  of  aliens  not  included  therein.  As  the 
amount  of  the  penalty  to  be  imposed  is  to  be  determined 
by  this  method,  the  section  would  not  in  terms  appear  to 
have  provided  any  penalty  for  mere  failure  to  deliver  the 
list.  And  it  seems  questionable  whether  under  this  pro- 
viso the  master  or  commanding  officer  of  an  outgoing  ves- 


The  Existing  Immigration  Law. 


249 


sel  transporting  departing  aliens,  who  had  made  a com- 
plete list  of  such  aliens,  but  had  failed  to  deliver  it  to  the 
collector  of  customs  at  the  port  of  sailing,  could  be  sub- 
jected to  any  penalty.  Still  it  may  be  said  in  connection 
herewith  that  failure  to  deliver  the  list  would  amount  to 
a failure  to  deliver  the  required  information  as  to  each 
and  every  alien  included,  although  in  no  case  could  the 
amount  of  the  fine  exceed  $100.00. 

It  may  be  added  in  this  connection  that  the  act  imposes 
no  penalty  on  the  master  for  giving  incorrect  manifests  of 
the  aliens  on  board  where  such  manifest  includes  all  such 
aliens  and  purports  to  give  the  required  information  as  to 
(each.99 

The  procedure  adopted  by  the  department  for  collecting 
fines  for  failure  to  manifest  as  prescribed  in  this  section 
is  as  follows : 

1.  As  to  incoming  manifests.  Written  notice  setting 
forth  wherein  the  lists  or  manifests  are  deficient  shall  be 
mailed  to  or  served  upon  the  master  of  the  vessel  or  the 
agent  of  the  transportation  company  concerned,  and  60 
days  from  the  time  of  such  service  allowed  within  which 
to  place  before  the  immigration  officer  in  charge  evidence 
to  show  why  the  statutory  penalty  should  not  be  collected. 
If  no  objection  is  made,  it  shall  be  collected  forthwith  by 
the  appropriate  collector  of  customs.  If  objection  be 
made,  the  full  record  shall  be  forwarded  to  the  Bureau  and 
no  further  action  taken  until  receipt  of  further  notice 
from  the  Bureau. 

2.  As  to  outgoing  manifests.  Action  similar  to  that 
prescribed  in  the  preceding  subdivision  shall  be  taken 
where  there  is  a failure  to  furnish  complete  manifests  of 
emigrants ; but  for  such  failure  in  the  case  of  a departing 
vessel  the  total  fines  collected  shall  not  exceed  $100. 

Sec.  16.  That  upon  the  receipt  by  the  immigration  offi- 
cers at  any  port  of  arrival  of  the  lists  or  manifests  of  in- 

"United  States  v.  Four  Hundred  and  Twenty  Dollars,  162  Fed.  803. 


250  The  Exclusion  and  Expulsion  of  Aliens. 


coming  aliens  provided  for  in  sections  twelve,  thirteen, 
and  fourteen  of  this  Act,  it  shall  he  the  duty  of  said  officers 
to  go  or  to  send  competent  assistants  to  the  vessel  to 
which  said  lists  or  manifests  refer,  and  there  inspect  all 
such  aliens,  or  said  immigration  officers  may  order  a tem- 
porary removal  of  such  aliens  for  examination  at  a desig- 
nated time  and  place,  but  such  temporary  removal  shall 
not  be  considered  a landing,  nor  shall  it  relieve  the  trans- 
portation lines,  masters,  agents,  owners,  or  consignees  of 
the  vessel  upon  which  said  aliens  are  brought  to  any  port 
of  the  United  States  from  any  of  the  obligations  which, 
in  case  such  aliens  remain  on  board,  would,  under  the 
provisions  of  this  Act,  bind  the  said  transportation  lines, 
masters,  agents,  owners,  or  consignees:  Provided , That 
where  a suitable  building  is  used  for  the  detention  and 
examination  of  aliens  the  immigration  officials  shall  there 
take  charge  of  such  aliens,  and  the  transportation  com- 
panies, masters,  agents,  owners,  and  the  consignees  of  the 
vessels  bringing  such  aliens  shall  be  relieved  of  the  re- 
sponsibility for  their  detention  thereafter  until  the  return 
of  such  aliens  to  their  care. 

This  section,  is  to  all  practical  purposes,  a re-enactment 
of  the  corresponding  section  of  the  Act  of  1903. 

The  “temporary  removal  of  aliens  for  examination ” is 
not  a landing. 

An  alien  so  removed  is  left  in  the  same  position  as  re- 
gards his  right  to  land  as  if  he  had  never  been  removed 
from  the  steamship;100  and  the  detention  for  such  exami- 
nation by  departmental  officers  cannot  give  rise  to  the 
claim  that  the  alien  so  detained,  although  the  minor  child 
of  a naturalized  alien,  but  who  has  never  before  been  in 
the  United  States,  has  acquired  a “dwelling”  in  this  coun- 
try, as  the  term  is  used  in  Sec.  2172  of  the  Revised 
Statutes.1 

Among  the  obligations  imposed  upon  transportation 
lines  and  the  officers  or  agents  of  the  vessel  bringing  the 

looUnited  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  Ekiu  v. 
United  States,  142  U.  S.  651,  35  Law  Ed.  1146;  In  re  Way  Tai,  96  Fed.  481. 

iZartarian  v.  Billings,  204  U.  S.  170,  51  Law  Ed.  428. 


The  Existing  Immigration  Law.  251 

alien  to  the  United  States  is  that  of  detaining  him  on 
board,  prescribed  by  section  19  of  the  act.  Section  19  of 
the  Act  of  March  3,  1903,  expressed  the  same  obligation 
and  penalized  the  “neglect  to  detain”  aliens  on  board, 
while  the  words  used  in  the  present  act  are  “fail  to  detain.” 
Section  10  of  the  Act  of  March  3,  1891,  used  the  words 
“neglect  to  detain”  in  this  connection.  In  construing  that 
act  it  was  held,  in  the  case  of  Warren  y.  United  States,2 
that  the  word  “neglect”  as  here  used  must  be  considered 
the  equivalent  of  “fail”  or  “omit.”  This  construction  was 
justly  criticised  in  the  case  of  United  States  v.  Spruth,3 
and  the  decision  was  overruled  in  the  case  of  Hackfelt  v. 
United  States.4  The  court  there  said:  “If  by  this  re- 
quirement it  was  intended  to  make  the  shipowner  or 
master  an  insurer  of  the  absolute  return  of  the  immi- 
grant at  all  hazards,  except  when  excused  by  vis  major  or 
inevitable  accident,  it  would  seem  that  Congress  would 
have  chosen  words  more  indicative  of  such  an  intention, 
and  instead  of  using  a word  of  uncertain  meaning  would 
have  affixed  the  penalty  in  cases  where  the  owner  or  master 
omitted  or  failed  to  safely  return  the  immigrant  illegally 
brought  here ...” 

It  would  seem  that  by  substituting  in  this  section  the 
word  “fail”  for  “neglect”  Congress  acted  with  direct  refer- 
ence to  this  decision.  Still,  while  it  is  possible  that  by  the 
use  of  the  word  “fail”  Congress  intended  to  make  the  per- 
sons named  insurers  at  all  hazards  of  such  detention  and 
return,  such  a construction  is  for  more  reasons  than  one 
open  to  considerable  doubt.  In  the  first  place,  as  the  court 
says  in  the  Hackfelt  case,  “it  is  difficult  to  see  how  a ship- 
owner could  insure  the  return  of  such  immigrants  with- 
out such  confinement  or  imprisonment  as  may  result  in 
great  hardship  to  that  class  of  individuals  who  may  them- 

258  Fed.  559. 

371  Fed.  678. 

4197  U.  S.  442,  49  Law  Ed.  826 ; and  see  United  States  v.  Pavy,  193  Fed. 
1006. 


252  The  Exclusion  and  Expulsion  of  Aliens. 

selves  have  had  no  intention  to  violate  any  law  of  this 
country.”  It  is  difficult  to  impute  to  Congress  the  inten- 
tion to  have  all  immigrants  kept  in  irons  by  the  master  of 
the  vessel,  if  it  appears  to  him  necessary  to  do  so,  in  order 
at  all  hazards  to  detain  them;5  still  more  difficult  to  im- 
pute the  intent  to  penalize  the  master,  if,  having  taken 
such  extreme  precaution,  any  or  all  of  the  prisoners  were 
to  break  their  chains  and  escape  to  United  States  terri- 
tory. Yet  this  would  logically  follow  were  the  effect  of 
the  section  to  make  the  master  an  absolute  insurer  of 
such  detention. 

But  there  is  a second  consideration  which  militates 
against  such  a view.  Section  16  contains  the  proviso 
“that  where  a suitable  building  is  used  for  the  detention 
and  examination  of  aliens,  the  immigration  officials  shall 
there  take  charge  of  such  aliens,  and  the  transportation 
companies,  masters,  owners,  agents,  and  consignees  of  the 
vessels  bringing  such  aliens  shall  be  relieved  of  the  re- 
sponsibility of  their  detention  thereafter  until  the  return 
of  such  aliens  to  their  care.”  Herein  consists  at  least  the 
implication  that  where  the  aliens  are  temporarily  be- 
yond the  control  of  the  persons  named,  the  latter  are  thus 
far  relieved  of  their  responsibility ; evidently  on  the 
natural  assumption  that,  being  beyond  their  control,  no 
question  of  “failing”  to  detain  them  can  arise.  It  would 
seem  to  follow  that,  in  the  absence  of  express  and  unmis- 
takable language  making  the  persons  named  responsible 
as  absolute  insurers  of  such  detention  and  return  at  all 
hazards,  which  Congress  has  not  used,  the  section  may  be 
well  construed  to  mean  that  when  the  power  of  detention 

sThe  Attorney  General  has  expressed  the  opinion  that  the  master  has  the 
right  to  put  an  alien  in  irons  in  order  to  prevent  him  from  unlawfully  leav- 
ing the  vessel;  but  that  this  may  only  be  done  as  a last  resort  and  where  it 
appears  that  nothing  else  will  prevent  the  unlawful  landing  of  such  alien. 
24  Op.  Atty.  Gen.  531,  November,  1902.  The  captain  of  a ship  on  which  the 
alien  has  been  placed  for  return  is  not  liable  for  his  escape,  if  at  the  time 
he  was  himself  on  shore,  and  others  were  in  charge  of  the  ship.  United  States 
v.  Pavy,  193  Fed.  1006. 


The  Existing  Immigration  Law.  253 

is,  for  reasons  not  arising  from  any  act  or  omission  of  the 
master,  beyond  his  control,  the  failure  to  detain  will  not 
subject  him  to  the  penalties  imposed  by  the  section.  The 
question  of  the  master’s  or  owner’s  liability  for  the  escape 
of  aliens  while  within  the  control  of  the  immigration  offi- 
cers has  been  passed  on  judicially  both  under  the  Immi- 
gration and  Chinese  Exclusion  acts;  it  being  held  under 
the  Act  of  March  3,  1891, 6 and  under  the  Chinese  Exclu- 
sion Act  of  July  5,  1884, 7 that  they  were  not  liable  for 
such  escape. 

Sec.  17.  That  the  physical  and  mental  examination  of 
all  arriving  aliens  shall  be  made  by  medical  officers  of  the 
United  States  Public  Health  and  Marine-Hospital  Service, 
who  shall  have  had  at  least  two  years’  experience  in  the 
practice  of  their  profession  since  receiving  the  degree  of 
doctor  of  medicine  and  who  shall  certify  for  the  informa- 
tion of  the  immigration  officers  and  the  boards  of  special 
inquiry  hereinafter  provided  for,  any  and  all  physical  and 
mental  defects  or  diseases  observed  by  said  medical  offi- 
cers in  any  such  alien,  or,  should  medical  officers  of  the 
United  States  Public  Health  and  Marine  Hospital  Ser- 
vice be  not  available,  civil  surgeons  of  not  less  than  four 
years’  professional  experience  may  be  employed  in  such 
emergency  for  such  service,  upon  such  terms  as  may  be 
prescribed  by  the  Commissioner-General  of  Immigration 
under  the  direction  or  with  the  approval  of  the  Secretary 
of  Commerce  and  Labor.  The  United  States  Public 
Health  and  Marine  Hospital  Service  shall  be  reimbursed 
by  the  immigration  service  for  all  expenditures  incurred 
in  carrying  out  the  medical  inspection  of  aliens  under 
regulations  of  the  Secretary  of  Commerce  and  Labor. 

Sec.  18.  That  it  shall  be  the  duty  of  the  owners,  officers, 
or  agents  of  any  vessel  of  transportation  line,  other  than 
those  railway  lines'  which  may  enter  into  a contract  as 
provided  in  section  thirty-two  of  this  Act,  bringing  an 
alien  to  the  United  States  to  prevent  the  landing  of  such 
alien  in  the  United  States  at  any  time  or  place  other  than 

6Hackfeld  & Co.  v.  United  States,  141  Fed.  9. 

^United  States  v.  Seabury,  133  Fed.  983. 


254  The  Exclusion  and  Expulsion  of  Aliens. 

as  designated  by  the  immigration  officers,  and  the  negli- 
gent failure  of  any  such  owner,  officer,  or  agent  to  comply 
with  the  foregoing  requirements  shall  be  deemed  a misde- 
meanor and  be  punished  by  a fine  in  each  case  of  not  less 
than  one  hundred  nor  more  than  one  thousand  dollars  or 
by  imprisonment  for  a term  not  exceeding  one  year,  or  by 
both  such  fine  and  imprisonment;  and  every  such  alien 
so  landed  shall  be  deemed  to  be  unlawfully  in  the  United 
States  and  shall  be  deported  as  provided  in  sections 
twenty  and  twenty-one  of  this  Act. 

By  this  section  the  duty  is  imposed  on  the  persons  desig- 
nated therein  of  affirmatively  preventing  the  landing  of 
such  aliens  as  they  may  transport  to  this  country  within 
the  territory  of  the  United  States  at  any  time  and  place 
other  than  is  designated  by  immigration  officers.  This 
section  is  more  stringent  in  its  provisions  than  the  cor- 
responding section  of  the  preceding  Act  of  1903  which 
made  it  the  duty  of  the  officers  and  owners  of  vessels  bring- 
ing such  aliens  only  “to  adopt  due  precautions”  to  pre- 
vent landing.  In  this  act  it  is  the  “negligent  failure  to 
prevent”  such  landing  which  is  prohibited  and  penalized, 
whereas  the  prior  act  does  not  penalize  the  failure  to 
adopt  due  precautions,  but  the  actual  landing  or  permit- 
ting to  land.  One  who  makes  it  possible  for  an  alien  to 
land  by  omitting  due  precautions  to  prevent  it  permits 
him  to  land  within  the  meaning  of  the  penal  clause  of  the 
Act  of  1903  ;8  but  this  does  not  apply  to  the  ordinary  case 
of  a sailor  deserting  while  on  shore  leave,9  nor  to  the  case 
of  a sick  alien  seaman  placed  in  a hospital  through  in- 
ability to  leave  for  home  on  the  vessel  on  which  he  came.10 


Sec.  19.  That  all  aliens  brought  to  this  country  in  vio- 
lation of  law  shall,  if  practicable,  be  immediately  sent 
back  to  the  country  whence  they  respectively  came  on  the 
vessels  bringing  them.  The  cost  of  their  maintenance 

sSee  Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 

slbid. 

loNiven  v.  United  States,  169  Fed.  782. 


The  Existing  Immigration  Law. 


255 


while  on  land,  as  well  as  the  expense  of  the  return  of  such 
aliens,  shall  be  borne  by  the  owner  or  owners  of  the  ves- 
sels on  which  they  respectively  came;  and  if  any  master, 
person  in  charge,  agent,  owner,  or  consignee  of  any  such 
vessel  shall  refuse  to  receive  back  on  board  thereof,  or  on 
board  of  any  other  vessel  owned  or  operated  by  the  same 
interests,  such  aliens,  or  shall  fail  to  detain  them  thereon, 
or  shall  refuse  or  fail  to  return  them  to  the  foreign  port 
from  which  they  came,  or  to  pay  the  cost  of  their  mainte- 
nance while  on  land,  or  shall  make  any  charge  for  the 
return  of  any  such  alien,  or  shall  take  any  security  from 
him  for  the  payment  of  such  charge,  such  master,  person 
in  charge,  agent,  owner,  or  consignee  shall  be  deemed 
guilty  of  a misdemeanor  and  shall,  on  conviction,  be  pun- 
ished by  a fine  of  not  less  than  three  hundred  dollars  for 
each  and  every  such  offense;  and  no  vessel  shall  have 
clearance  from  any  port  of  the  United  States  while  any 
such  fine  is  unpaid;  Provided , That  the  Commissioner- 
General  of  Immigration,  with  the  approval  of  the  Secre- 
tary of  Commerce  and  Labor,  may  suspend,  upon  condi- 
tions to  be  prescribed  by  the  Commissioner-General  of 
Immigration,  the  deportation  of  any  alien  found  to  have 
come  in  violation  of  any  provision  of  this  act,  if,  in  his 
judgment,  the  testimony  of  such  alien  is  necessary  on 
behalf  of  the  United  States  Government  in  the  prosecu- 
tion of  offenders  against  any  provision  of  this  act:  Pro- 
vided, That  the  cost  of  maintenance  of  any  person  so  de- 
tained resulting  from  such  suspension  of  deportation 
shall  be  paid  from  the  “immigrant  fund”  but  no  alien  cer- 
tified, as  provided  in  section  seventeen  of  this  act,  to  be 
suffering  from  tuberculosis  or  from  a loathsome  or  dan- 
gerous contagious  disease  other  than  one  of  quarantinable 
nature  shall  be  permitted  to  land  for  medical  treatment 
thereof  in  any  hospital  in  the  United  States,  unless  with 
the  express  permission  of  the  Secretary  of  Commerce  and 
Labor:  Provided,  That  upon  the  certificate  of  a medical 
officer  of  the  United  States  Public  Health  and  Marine 
Hospital  Service  to  the  effect  that  the  health  or  safety  of 
an  insane  alien  would  be  unduly  imperiled  by  immediate 
deportation,  such  alien  may,  at  the  expense  of  the  “immi- 
grant fund,”  be  held  for  treatment  until  such  time  as  such 
alien  may,  in  the  opinion  of  such  medical  officer,  be  safely 
deported. 


256  The  Exclusion  and  Expulsion  of  Aliens. 

This  section  deals  mainly  with  the  obligations  of  ship- 
owners arising  in  connection  with  the  detention  and  re- 
turn of  aliens  on  being  again  confided  to  their  care  after 
having  been  excluded  by  the  immigration  officers;  and  is 
to  this  extent  to  be  distinguished  from  the  provisions  of 
section  8,  which  prohibit  generally  the  unlawful  smug- 
gling in  of  aliens,  those  of  section  9,  which  prohibit  the 
bringing  to  United  States  ports  of  disabled  aliens,  and 
those  of  section  18  which  are  directed  against  the  landing 
of  aliens  without  the  knowledge  of  the  masters  or  owners 
after  the  vessels  bringing  them  have  arrived  in  port,  but 
before  examination  by  immigration  officials. 

“or  shall  fail  to  detain  them  thereon , or  shall  refuse  or 
fail  to  return  them  to  the  foreign  port  from  which  they 
came ” 

The  words  "fail  to  detain”  and  "failure  to  return” 
(aliens  brought  to  the  United  States)  take  the  place  of  the 
expressions  "neglect  to  detain”  and  "neglect  to  return” 
used  in  the  preceding  act.  This  distinction  has  already 
been  pointed  out  and  made  the  subject  of  comment  in  con- 
sidering section  16.  In  construing  the  corresponding  sec- 
tion of  the  Act  of  March  3,  1891, — where  the  word  "neg- 
lect” is  used — the  provision  was  held  inapplicable  where 
the  facts  showed  that  an  alien  was  carried  from  his  own 
home  by  mistake  to  the  United  States,  refused  admission 
thereto,  returned  to  the  master  for  detention,  and  left  the 
ship  without  the  latter’s  knowledge  or  consent;11  and  it 
has  been  held  (obiter)  not  to  apply  to  a case  where  the 
aliens  were  returned  to  the  care  of  the  master,  and  where 
in  spite  of  an  agreement  with  him  after  being  returned 
on  board  to  ship  back  on  the  return  voyage,  and  of  having 
had  their  pay  then  and  there  increased  by  the  captain,  they 
got  back  ashore  by  stealth,  contrary  to  the  intention  of  the 

nMoffitt  v.  United  States,  128  Fed.  375. 


The  Existing  Immigration  Law. 


257 


master,  evading  a watch  kept  on  board  by  the  captain’s 
orders.12  In  discussing  this  provision  in  connection  with 
section  16  attention  has  already  been  called  to  the  fact 
that  the  Supreme  Court  has  decided  that  shipowners  were 
not  under  the  earlier  acts  to  be  considered  as  absolute 
insurers  of  such  return.13 

Refusal  to  pay  maintenance  of  rejected  aliens. 

Refusal  to  pay  the  cost  of  the  maintenance  of  aliens 
brought  to  the  United  States  in  violation  of  law  is  made  a 
misdemeanor,  the  commission  of  which  is  punished  with 
a three  hundred  dollar  fine,  as  is  the  making  of  any  charge 
for  returning  such  aliens  or  the  taking  of  any  security 
from  them  by  way  of  payment.  As  used  in  this  section  the 
word  “charge”  has  been  held  to  mean  some  overt  act  com- 
mitted in  the  United  States  by  which  the  charging  party 
manifests  its  purpose  to  demand  the  money  charged  from 
the  party  charged,  and  does  not  include  any  subsequent 
relations  which  are  the  consequences  of  the  act;  and 
similarly  “taking  security”  for  the  payment  of  the  charge 
of  deportation  has  been  held  not  to  be  a continuous  act 
following  the  person  who  took  the  money  by  way  of  se- 
curity wherever  he  goes.14  These  prohibitions  constitute 
the  only  practical  means  at  the  command  of  Congress  to 
protect  aliens  brought  here  unlawfully  by  transportation 

isUnited  States  v.  Hemet,  156  Fed.  285. 

isHackfeld  & Co.  v.  United  States,  197  U.  S.  442,  49  Law  Ed.  826;  and 
see  United  States  v.  Almond,  6 Phil.  Rep.  306;  United  States  v.  Pavy,  193 
Fed.  1006. 

^United  States  v.  Nord  Deutscher  Lloyd,  186  Fed.  391.  Reversed  in 

United  States  v.  Nord  Deutscher  Lloyd,  223  U.  S.  188,  56  Law  Ed.  . 

Mr.  Justice  Lamar  said:  “When,  therefore,  in  Bremen  the  alien  paid  and 
the  defendant  received  the  150  rubles  for  a return  passage,  they  created  a 

condition  which  was  operative  in  New  York This  retention  of  the 

money  with  such  intent”  (its  retention  by  the  defendants  in  New  York  with 
intent  to  make  charge  and  secure  payment  for  the  alien’s  return  passage- 
1 ‘ was  an  aturmative  violation  of  the  statute.  The  company  could  not  take  the 
aliens  back  free  of  charge,  as  required  by  law,  and  at  the  same  time  retain 
the  fare  covering  the  same  trip.  ’ 1 


258  The  Exclusion  and  Expulsion  of  Aliens. 


companies,  as  well  as  the  United  States  itself,  from  con- 
tributing to  the  expense  attendant  on  the  act  of  transpor- 
tation, the  responsibility  for  which  is  justly  sought  to  be 
placed  upon  those  who,  for  the  sake  of  the  passage  money, 
choose  to  run  the  risk  of  being  detected  in  the  attempt  to 
introduce  undesirable  or  disqualified  aliens  into  this  coun- 
try in  violation  of  its  laws. 

Suspension  of  deportation  for  purpose  of  taking  testi- 
mony. 

With  regard  to  this  point  Rule  25  provides  that:  Where 
the  deportation  of  an  alien  is  stayed  so  that  he  may  testify 
concerning  violations  of  the  immigration  law,  the  case 
must  be  promptly  reported  to  the  United  States  attorney 
with  request  that  if  he  decides  to  institute  proceedings 
he  either  take  the  deposition  of  the  alien  or  secure  a 
court  order  for  his  detention  as  a witness.  In  either  event 
the  Bureau  shall  be  promptly  informed  as  to  any  action 
taken  hereunder. 

Landing  for  Hospital  Treatment. 

In  the  former  act  this  section  prohibited  the  landing 
for  medical  treatment  in  the  hospitals  of  the  United 
States  of  any  alien  certified  to  be  suffering  with  a loath- 
some or  dangerous  disease.  By  the  present  section  this 
rule  may  be  relaxed  at  the  discretion  of  the  Secretary  of 
Commerce  and  Labor,  and  only  by  his  express  permission 
may  the  treatment  of  such  persons  be  allowed. 

Rule  19  contains  the  following  provisions  on  this  point : 

Application  for  hospital  treatment.  No  application  for 
hospital  treatment  of  aliens  afflicted  with  tuberculosis  or 
a loathsome  or  dangerous  contagious  disease  will  be  con- 
sidered unless  submitted  promptly  to  the  immigration 
official  in  charge  at  the  port  of  arrival  (by  him  to  be  for- 
warded to  the  Bureau),  and  unless  in  addition  such  ap- 
plication shows  (1)  That  detention  or  landing  for  hos- 


The  Existing  Immigration  Law.  259 

pital  treatment  is  necessary  to  meet  the  ends  of  justice 
and  humanity;  (2)  that  the  applicant  or  some  one  on  his 
behalf  is  willing  and  able  to  deposit  at  once  a sum  suffi- 
cient to  pay  for  treatment  for  60  days,  or  less  if  a shorter 
time  is  estimated  as  that  within  which  a cure  possibly  may 
be  affected,  and  to  furnish  bond  in  a penalty  of  not  less 
than  $300  providing  that  at  least  15  days  prior  to  the 
expiration  of  said  period  a further  deposit  will  be  made 
sufficient  to  coyer  cost  of  treatment  for  30  days  additional 
and  a remittance  of  a similar  amount  15  days  prior  to  the 
expiration  of  the  period  covered  by  this  deposit,  and  so 
on  until  the  alien  is  cured  and  permanently  landed  or  the 
case  otherwise  disposed  of,  the  bond  also  to  provide  that 
a sum  sufficient  to  defray  the  cost  of  forwarding  the  alien 
to  final  destination  will  be  furnished  when  and  if  needed, 
and,  in  the  event  the  alien  is  a person  who,  from  infancy 
or  other  cause,  will  require  an  attendant  to  accompany 
him  to  final  destination  if  landed,  or  to  the  country  of 
origin  if  eventually  deported,  that  such  an  attendant  or 
funds  sufficient  to  defray  cost  of  employing  one  will  be 
furnished.  The  same  time  shall  be  allowed  for  filing  ap- 
plications for  hospital  treatment  as  is  allowed  for  the 
filing  of  appeals. 

If  on  arrival  the  condition  of  an  alien  is  such  that,  in 
the  estimation  of  the  immigration  official  in  charge,  the 
dictates  of  humanity  require  that  he  shall  be  given  imme- 
diate hospital  treatment,  such  treatment  shall  be  ac- 
corded. 

Report  and  certificate  to  accompany  application . The 
immigration  official  in  charge  who  forwards  the  applica- 
tion shall  furnish  a transcript  of  the  board  hearing,  and 
a certificate  of  a Public  Health  and  Marine  Hospital  sur- 
geon showing  the  character  and  extent  of  the  alien’s  af- 
fliction and  estimating  the  duration  of  treatment  required 
to  effect  a cure;  and  shall  state  whether  or  not  the  pre- 
liminary deposit  has  been  made,  and  whether  or  not  he 
thinks  the  bond  required  will  be  forthcoming  in  the  event 


260  The  Exclusion  and  Expulsion  of  Aliens. 


that  the  application  is  granted;  and  shall  express  his 
views  of  the  case. 

Action  if  requirements  not  observed.  If  the  applica- 
tion is  granted  and  there  is  a failure  to  observe  the  terms 
of  the  bond  exacted,  report  thereof  shall  be  made  to  the 
Bureau,  to  the  end  that  the  condition  of  the  bond  may  be 
enforced  and  the  alien  deported.  Any  balance  of  a de- 
posit remaining  unexpended  when  the  alien  is  cured  or 
released  shall  be  returned  to  the  depositor.  The  cost  of 
hospital  treatment  may  be  charged  against  the  deposit 
from  the  time  the  petition  was  filed. 

Admission  to  hospital  not  a “landing.”  The  landing  or 
detention  of  an  alien  under  this  rule  shall  not  be  con- 
strued in  any  manner  to  alter  the  status  of  the  alien  with 
reference  to  his  right  to  enter  or  remain  in  the  United 
States,  nor  in  any  manner  to  affect  the  liability  of  trans- 
portation companies  under  section  9 or  Rules  4 and  26. 

The  expenses  of  aliens  thus  landed  shall  be  borne  by  the 
alien  and  not  by  the  transportation  companies.15 

Landing  of  Insane  Aliens  for  Hospital  Treatment. 

The  provision  that  in  such  cases  the  expense  shall  be 
borne  by  the  government  is  reiterated  in  subdivision  4 of 
Rule  26;  and  subdivision  2 of  Rule  19,  following  the  act, 
provides  that  if  on  arrival  the  condition  of  an  alien  is 
such  that  in  the  estimation  of  the  immigration  official  in 
charge,  the  dictates  of  humanity  require  that  he  shall  be 
given  immediate  hospital  treatment,  such  treatment  shall 
be  accorded. 

Detention  for  taking  testimony. 

This  is  a re-enactment  of  the  corresponding  provision 
in  the  preceding  act.  Rule  25  provides  that  where  the 
deportation  is  stayed  so  that  he  may  testify  concerning 
(violations  of  the  immigration  law,  the  case  must  be 
promptly  reported  to  the  United  States  attorney  with  the 

^Subdivision  4,  rule  26;  Opinion  Comptroller,  January  15,  1908. 


The  Existing  Immigration  Law. 


261 


request  that  if  he  decides  to  institute  proceedings  he 
either  take  the  deposition  of  the  alien  or  secure  a court 
order  for  his  detention  as  a witness.  In  any  event  the 
Bureau  shall  be  promptly  informed  of  any  action  taken 
hereunder. 

Subdivision  4 of  Rule  26  provides  that  in  such  cases  the 
expense  of  detention  shall  be  borne  by  the  government. 

Sec.  20.  That  any  alien  who  shall  enter  the  United 
States  in  violation  of  law,  and  such  as  become  public 
charges  from  causes  existing  prior  to  landing,  shall,  upon 
the  warrant  of  the  Secretary  of  Commerce  and  Labor,  be 
taken  into  custody  and  deported  to  the  country  whence  he 
came  at  any  time  within  three  years  after  the  date  of  his 
entry  into  the  United  States.  Such  deportation,  includ- 
ing one-half  of  the  entire  cost  of  removal  to  the  port  of  de- 
portation, shall  be  at  the  expense  of  the  contractor,  pro- 
curer, or  other  person  by  whom  the  alien  was  unlawfully 
induced  to  enter  the  United  States  or  if  that  can  not  be 
done,  then  the  cost  of  removal  to  the  port  of  deportation 
shall  be  at  the  expense  of  the  “immigration  fund”  pro- 
vided for  in  section  one  of  this  act,  and  the  deportation 
from  such  port  shall  be  at  the  expense  of  the  owner  or 
owners  of  such  vessel  or  transportation  line  by  which  such 
aliens  respectively  came:  Provided,  That  pending  the 
final  disposal  of  the  case  of  any  alien  so  taken  into  custody 
he  may  be  released  under  a bond  in  the  penalty  of  not  less 
than  five  hundred  dollars  with  security  approved  by  the 
Secretary  of  Commerce  and  Labor,  conditioned  that  such 
alien  shall  be  produced  when  required  for  a hearing  or 
hearings  in  regard  to  the  charge  upon  which  he  has  been 
taken  into  custody,  and  for  deportation  if  he  shall  be 
found  to  be  unlawfully  within  the  United  States. 

This  section  deals  with  the  deportation  of  aliens  who 
have  entered  the  United  States  in  violation  of  law,  and 
those  who  have  become  public  charges  from  causes  exist- 
ing prior  to  landing.  The  corresponding  section  of  the 
Act  of  1903  provided  that  such  persons  might  be  deported 
within  two  years  after  arrival;  whereas  under  the  present 


262  The  Exclusion  and  Expulsion  of  Aliens. 

act  they  may  be  taken  into  custody  and  deported  on  the 
warrant  of  the  Secretary  of  Commerce  and  Labor  within 
three  years  thereafter. 

Arrest  and  Deportation  on  Warrant. 

Aliens  who  are  found  by  the  Secretary  to  be  unlawfully 
in  the  United  States  whether  because  of  unlawful  entry 
in  the  first  place  or  because  found  to  have  become  public 
charges  from  causes  existing  prior  to  the  landing  are  sub- 
ject to  the  general  provisions  of  Rule  22  which  requires 
that  before  the  warrant  of  arrest  shall  issue  there  shall 
have  been  made  a thorough  investigation  on  the  part  of 
officers  applying  for  the  issuance  thereof;  that  the  appli- 
cation must  state  facts  bringing  the  alien  within  one  or 
more  of  the  classes  subject  to  deportation  after  entry  and 
that  the  proof  of  these  facts  shall  be  the  best  that  can  be 
obtained. 

Subdivision  3 of  Rule  22  provides  that  in  cases  involv- 
ing the  question  of  whether  or  not  tlie  alien  has  become  a 
public  charge  from  causes  existing  prior  to  landing  the 
application  in  such  cases  must  be  accompanied  by  a medi- 
cal certificate  containing  the  following: 

(a)  An  explicit  statement  that  the  alien  is  a public 
charge,  where,  and  how,  and,  if  in  an  institution,  the  date 
of  admission  thereto. 

(b)  A full  and  accurate  statement  of  the  alien’s  disa- 
bilities, mental  or  physical;  also  whether  or  not  a com- 
plete cure  is  possible ; and  if  yes,  when ; and  if  not,  whether 
partial  cure  may  be  expected;  and  to  what  extent  the 
alien  will  thereafter  be  self-supporting.  Also,  in  insane 
cases,  recovered  or  apparently  recovered  from  the  attack, 
whether  new  attacks  are  to  be  expected. 

(c)  Whether  or  not  the  disabilities  described  consti- 
tute the  sole  causes  why  the  alien  is  a public  charge ; any 
other  causes  to  be  stated. 

(d)  Whether  the  causes  which  render  the  alien  a pub- 
lic charge  existed  prior  to  landing  or  arose  subsequent 


The  Existing  Immigration  Law. 


263 


thereto,  and  in  the  former  case  the  reasons  in  detail  justi- 
fying such  a conclusion. 

Where  the  Bureau  so  directs,  the  application  must  be 
further  accompanied  by  a complete  copy  of  the  clinical  or 
general  history  of  the  case  as  shown  by  the  hospital 
records,  including  the  statements  of  relatives  and  friends. 
If  deemed  advisable  by  the  local  immigration  officer,  it 
may  be  further  accompanied  by  the  certificate  of  an  offi- 
cer of  the  Public  Health  and  Marine  Hospital  Service  in 
relation  to  the  alien’s  condition. 

The  term  “likely  to  become  a public  charge”  has  been 
held  to  include  the  likelihood  of  becoming  a criminal  as 
well  as  a pauper;16  thus  there  is  no  reason  why,  if,  after 
the  entry  of  the  alien  and  within  the  statutory  period  there 
is  proof  that  such  a condition  existed  prior  to  his  entry, 
he  should  not  be  subject  to  deportation  under  this  section. 

Expense  of  Deportation — how  and  by  whom  paid. 

Under  the  prior  act  the  expense  of  the  deportation  “in- 
cluding one-half  of  the  inland  transportation  to  the  port 
of  deportation”  is  to  be  borne  by  the  “person  bringing 
such  alien  into  the  United  States,  or  if  that  cannot  be 
done  then  at  the  expense  of  the  Immigrant  Fund.”  Under 
the  present  section  the  “deportation  including  one-half  of 
the  entire  cost  of  removal  to  the  port  of  deportation  shall 
be  at  the  expense  of  the  contractor,  procurer,  or  other 
person  by  whom  an  alien  was  induced  to  enter  the  United 
States.”  In  case  this  cannot  be  done  the  cost  of  removal 
to  the  port  of  deportation  shall  be  at  the  expense  of  the 
appropriation  for  the  enforcement  of  the  immigration 
law ; but,  whereas  under  the  prior  act  the  owners  or  owner 
of  the  vessel  were  not  under  the  expense  of  returning  such 
alien  from  the  port  of  deportation,  in  case  the  person  who 
brought  him  to  the  United  States  could  be  found,  by  this 
act  such  expense  shall  in  such  case  be  borne  by  the  owners 
of  the  vessel  or  transportation  line  by  which  such  alien 

^United  States  v.  Williams,  175  Fed.  274. 


264  The  Exclusion  and  Expulsion  of  Aliens. 


came  to  the  United  States.  Neither  this  section  nor  the 
following  is  retroactive  to  the  extent  of  imposing  on  the 
ship  owner  liability  to  pay  for  the  return  of  an  alien 
woman  who  was  brought  here  under  no  disability  when 
the  act  of  1903  was  in  force,  and,  in  July  1910  was  found 
practicing  prostitution  and  was  thus  subject  to  deporta- 
tion under  the  provisions  of  the  Act  of  March  26th  of  that 
year.17 

The  term  “one-half  of  the  entire  cost  of  removal  to  the 
port  of  deportation”  substitutes  the  term  “one-half  of  the 
cost  of  inland  transportation  to  the  port  of  deportation” 
used  in  the  corresponding  section  of  the  Act  of  1903.  The 
entire  cost  of  removal  might  well  be  deemed  to  mean  the 
sum  of  the  expense  involved  in  the  removal  of  the  alien. 
The  provision  of  the  earlier  statute  was  held  to  mean  “the 
cost  of  carrying  the  alien  from  the  inland  place  where  he 
may  be  detained  to  the  port  of  deportation.”18  The  effect 
of  the  present  provision  seems  to  be  that  the  person 
chargeable  with  the  expense  must  bear  not  only  one-half  of 
that  involved  by  the  act  of  removing  the  alien  to  the  port 
but  one-half  of  the  expense  incurred  by  the  officer  or  offi- 
cers in  arriving  at  the  inland  place. 

The  provision  that  such  alien  may  be  released  under 
bond  in  the  penalty  of  not  less  than  $500,  with  security 
approved  by  the  Secretary  of  Commerce  and  Labor,  condi- 
tioned on  his  appearance  for  hearing  with  regard  to  the 
charge  upon  which  he  has  been  taken  into  custody,  or  for 
deportation,  is  new,  and  an  addition  to  the  preceding  sec- 
tion. 

Release  under  bond. 

Subdivision  5 of  Rule  22  provides  that  the  amount  of 
any  bond  under  which  an  arrested  alien  may  be  released 
shall  be  $500,  unless  different  instructions  are  given  by  the 
Department,  which,  also  shall,  prior  to  release,  approve 

^United  States  v.  North  German  Lloyd,  185  Fed.  158. 

isUnited  States  v.  Hamburg  American  liine,  159  Fed.  104. 


The  Existing  Immigration  Law. 


265 


the  bond,  except  that  the  approval  of  the  local  United 
States  attorney  as  to  form  and  execution  shall  be  suffi- 
cient where,  to  avoid  delay,  the  immigration  officer  in 
charge  deems  it  proper  to  submit  the  bond  to  such  at- 
torney for  approval.  Aliens  who  are  unable  to  give  bail 
shall  be  held  in  jail  only  in  case  no  other  secure  place  of 
detention  can  be  found. 

Sec.  21.  That  in  case  the  Secretary  of  Commerce  and 
Labor  shall  be  satisfied  that  an  alien  has  been  found  in 
the  United  States  in  violation  of  this  act,  or  that  an  alien 
is  subject  to  deportation  under  the  provisions  of  this  act 
or  of  any  law  of  the  United  States,  he  shall  cause  such 
alien  within  the  period  of  three  years  after  landing  or 
entry  therein  to  be  taken  into  custody  and  returned  to  the 
country  whence  he  came,  as  provided  by  section  twenty  of 
this  act,  and  a failure  or  refusal  on  the  part  of  the  mas- 
ters, agents,  owners,  or  consignees  of  vessels  to  comply 
with  the  order  of  the  Secretary  of  Commerce  and  Labor  to 
take  on  board,  guard  safely,  and  return  to  the  country 
whence  he  came  any  alien  ordered  to  be  deported  under  the 
provisions  of  this  act  shall  be  punished  by  the  imposition 
of  the  penalties  prescribed  in  section  nineteen  of  this  act : 
Provided , That  when  in  the  opinion  of  the  Secretary  of 
Commerce  and  Labor  the  mental  or  physical  condition  of 
such  alien  is  such  as  to  require  personal  care  and  at- 
tendance, he  may  employ  a suitable  person  for  that  pur- 
pose, who  shall  accompany  such  alien  to  his  or  her  final 
destination,  and  the  expense  incident  to  such  service  shall 
be  defrayed  in  like  manner. 

Section  21  provides  for  the  deportation  of  any  alien — 
that  is  aside  from  the  class  to  which  the  provisions  of  the 
preceding  section  particularly  apply — in  case  the  Secre- 
tary of  Commerce  and  Labor  is  satisfied  that  such  alien 
is  in  the  United  States  in  violation  of  this  act,  or  that  such 
alien  is  subject  to  deportation  under  the  provisions  of  this 
act  or  of  any  law  of  the  United  States,  such  alien  to  be 
taken  into  custody  and  returned  to  the  country  whence  he 
came  as  provided  by  section  20. 

The  provision  as  to  aliens  subject  to  deportation  under 


266  The  Exclusion  and  Expulsion  of  Aliens. 

the  provisions  of  any  law  of  the  United  States  does  not  ap- 
pear in  the  act  of  1903.  The  penalties  of  the  former  cor- 
responding section  have  been  maintained  in  this  act  to 
apply  to  vessels  whose  masters,  agents,  owners,  or  con- 
signees have  failed  to  comply  with  the  order  of  the  Secre- 
tary of  Commerce  and  Labor  relative  to  such  deportation, 
being  the  same  as  the  penalties  imposed  by  section  19. 

This  section  contains  a new  provision  to  the  effect  that 
when  a deported  alien  requires  personal  care  and  attend- 
ance the  Secretary  of  Commerce  and  Labor  may  employ  a 
suitable  person  to  attend  such  alien  on  his  or  her  return. 
In  Rule  23  the  Secretary  has  provided,  at  the  request  of 
many  of  the  largest  transportation  companies,  a means 
whereby  this  special  care  and  attention  may  be  provided 
by  officers  of  the  vessels,  reports  thereof  being  made  to  the 
Secretary — an  arrangement  which  obviates  the  necessity 
of  placing  government  attendants  or  nurses  on  the  vessels. 
But  the  Secretary  reserves  the  right  to  do  so  in  case  a 
steamship  company  fails  to  comply  fully  with  the  rule 
made  in  its  interests. 

Rule  23  which  deals  with  this  subject  contains  the  fol- 
lowing provisions : 

(1)  Where  the  immigration  authorities  find  that  an 
alien  about  to  be  deported  (whether  after  rejection  by  a 
board  or  on  Department  warrant)  requires  special  care 
and  attention,  the  steamship  company  concerned  must 
provide  such  care  and  attention  as  his  condition  calls  for, 
not  only  during  the  ocean  voyage,  but  also  as  hereinafter 
provided  during  the  foreign  inland  journey. 

(2)  The  alien  shall  be  delivered  to  the  master  or  first 
or  second  officer  of  the  vessel  by  which  deportation  is  to 
occur,  together  with  the  appropriate  form,  also  a dupli- 
cate carbon  of  sheet  “A”  thereof.  The  receipt  and  sheet 
“A”  shall  (except  as  to  signature)  be  filled  out  by  an  im- 
migration officer.  The  receipt  attached  to  sheet  “A”  shall 
be  signed  by  the  ship’s  officer  to  whom  the  alien  has  been 
delivered  and  returned  forthwith  to  the  immigration  offi- 


The  Existing  Immigration  Law.  267 

cer  making  delivery.  Sheets  “B”  and  “C”  shall  be  re- 
tained by  the  ship’s  officer  and  in  due  course  filled  out  by 
the  agents  or  persons  therein  designated  and  by  them  re- 
turned by  mail  as  therein  provided. 

(3)  From  the  foreign  port  of  debarkation  the  steam- 
ship company  must  forward  the  alien  to  destination  in 
charge  of  a proper  custodian  (all  expenses  to  be  borne  by 
such  company),  except  only  in  cases  where  foreign  public 
officials  decline  to  allow  such  custodian  to  proceed  and 
themselves  take  charge  of  the  alien,  which  fact  must  be 
shown  by  signing  the  form  provided  in  the  lower  half  of 
sheet  “C”.  Where  the  foreign  public  officials  take  charge 
not  at  the  port  of  debarkation,  but  at  an  interior  frontier, 
both  forms  on  sheet  “C”  must  be  filled  out,  the  former  in 
relation  to  the  inland  journey  as  far  as  such  frontier. 

(4)  Whenever,  without  excuse  satisfactory  to  the  im- 
migration officer  in  charge  at  the  port  of  embarkation,  a 
steamship  company  has  failed  for  a period  of  90  days 
after  departure  of  an  alien  requiring  special  care  and  at- 
tention under  this  rule  to  comply  with  any  of  the  terms 
thereof,  including  where  it  has  failed  to  return  sheets  “B” 
and  “C”  properly  filled  out,  such  immigration  officer  shall 
forthwith  report  this  fact  to  the  Bureau,  and  thereafter 
the  Secretary  of  Commerce  and  Labor  will  without  further 
notice  and  during  such  period  as  he  shall  determine,  ex- 
ercise his  right  (sec.  21)  to  employ  suitable  persons  to 
accompany  to  their  final  destinations  aliens  deported  on  a 
vessel  of  such  steamship  company  requiring  special  care 
and  attention.  Instructions  as  to  compensation  of  such 
attendants,  their  mode  of  travel,  their  right  of  access  to 
the  alien  during  the  ocean  voyage,  and  other  necessary 
matters  will  be  given  in  each  case  as  it  arises. 

The  Warrant  of  the  Secretary  of  Commerce  and  Labor. 

The  right  of  the  Secretary  to  issue  the  warrant  is  not 
impaired  or  taken  away  by  the  fact  that  it  is  directed 
against  aliens  who  have  been  allowed  to  land  under  the 


268  The  Exclusion  and  Expulsion  of  Aliens. 

unanimous  decision  of  a board  of  special  inquiry;19  and 
the  warrant  need  not  be  signed  by  the  Secretary,  but  is 
valid  if  signed  by  the  Assistant  Secretary.20  A warrant 
of  arrest  alleging  that  an  alien  is  unlawfully  in  the  United 
States  in  that  he  had  been  convicted  or  had  admitted  hav- 
ing committed  prior  to  landing  a felony  or  other  crime  or 
misdemeanor  involving  moral  turpitude  will  support  an 
order  of  deportation  based,  first,  on  such  conviction,  sec- 
ond, on  the  fact  of  having  admitted  the  commission  of  such 
crime  or  crimes,  and  third,  on  the  fact  that  he  was  likely 
to  become  a public  charge.  The  court  held  that  this  last 
conclusion  was  wholly  within  the  power  of  the  Secretary 
to  draw,  even  though  not  alleged  in  the  warrant,  inasmuch 
as  the  allegations  of  criminality  alleged  in  the  warrant 
and  duly  proven  were  of  themselves  sufficient  to  justify 
such  a conclusion.  The  Court  further  found  that  the 
alien  was  advised  at  the  outset  that  the  authorities  meant 
to  rule  thereon  as  a ground  for  deportation  and  that  there 
was  no  requirement  either  in  the  act  or  in  the  promul- 
gated regulations  that  the  warrant  must  state  the  alleged 
grounds.21 

On  the  other  hand,  it  has  been  held  that  a warrant  of 
arrest  stating  “that  the  said  alien  is  a member  of  the  ex- 
cluded classes  in  that  he  imported  a woman  for  an  immoral 
purpose  and  that  he  has  been  convicted  of  or  admits  hav- 
ing committed  a felony  or  other  crime  or  misdemeanor 
involving  moral  turpitude  prior  to  his  entry  into  the 
United  States,”  is  insufficient,  not  being  specific  in  that 
it  did  not  state  who  the  woman  was  or  for  what  immoral 
purpose  she  was  imported,  whether  the  arrested  alien  was 
convicted  of  or  merely  admitted  the  commission  of  a 
crime,  or  whether  it  was  either  a crime  or  misdemeanor 
involving  moral  turpitude”22  and  to  the  same  effect,  where 

isPearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029. 

2«United  States  v.  Eedfern,  180  Fed.  506. 

ziUnited  States  v.  Vvilliams,  175  Fed.  274. 

22United  States  ex  rel.  Huber  v.  Sibray,  178  Fed.  144. 


The  Existing  Immigration  Law. 


269 


the  warrant  charged  that  the  alien  woman  was  a member 
of  the  excluded  class  because  she  entered  for  an  immoral 
purpose,  where  the  warrant  did  not  specify  what  the  im- 
moral purpose  was.23  But  on  the  contrary  it  has  been 
held  that  a warrant  is  sufficient  which  charges  that  the 
alien  is  a member  of  the  excluded  classes  in  that  he  is  a 
contract  laborer,  and  was  induced  or  solicited  to  migrate 
to  this  country  by  an  offer  or  promise  of  employment  or 
in  consequence  of  an  agreement  not  written  or  printed  ex- 
press or  implied,  to  perform  manual  labor  in  the  United 
States,  the  warrant  not  being  criminal  in  its  nature.24 
Of  the  three  decisions  just  cited,  the  first  two  are  wholly 
irreconcilable  with  the  third.  The  first  two  were  reversed 
by  the  Circuit  Court  of  Appeals25  not,  however,  on  the 
question  of  the  sufficiency  of  the  warrant,  but  on  the 
ground  that  the  aliens  being  enlarged  on  bail  at  the  time 
the  writ  of  habeaus  corpus  issued,  its  issue  was  legally 
unjustifiable,  there  being  no  “restraint.” 

The  test  of  sufficiency  given  in  the  Sibray  cases  “that  it 
should  give  to  thb  alien  sufficient  information  of  the  spe- 
cific act  or  acts ...  so  that  he  can  offer  testimony  in  refu- 
tation of  the  charge  at  the  hearing”  is  at  least  limited  by 
the  Court  in  the  Williams  case,26  which  drew  attention  to 
the  fact  that  the  applicant  “was  advised  at  the  outset  of 
the  hearing”  of  the  ground  on  which  the  authorities  in- 
tended to  rule.  At  the  same  time,  it  must  be  admitted 
that  the  two  decisions  are  not  in  pari  passu  as  to  the  re- 
quisites of  the  warrant,  particularly  with  regard  to  the 
necessity  of  specifying  the  particular  crime  or  misde- 
meanor the  conviction  or  admission  of  commission  of 
which  forms  the  ground  of  deportation.  And  it  has  been 
held  that  a warrant  of  arrest  will  not  support  an  order 

23United  States  ex  rel.  Statlichnitzer  v.  Sibray,  178  Fed.  150. 

2*Ex  parte  Michele,  188  Fed.  449. 

25United  States  ex  rel.  Hahn,  Statlichnitzer  and  Kupples,  v.  Sibray,  185 
Fed.  401. 

2*Supra;  United  States  v.  Williams,  175  Fed.  274. 


270  The  Exclusion  and  Expulsion  of  Aliens. 


for  deportation  where  the  warrant  charges  violation  of 
the  act  of  Congress  approved  Feb.  20,  1907,  with  speci- 
fications which  appear  to  be  within  the  expressed  terms 
of  section  2 thereof  to  the  effect  that  the  alien  entered  as 
a “contract  laborer,”  when  it  was  proved  that,  as  a matter 
of  fact  the  alien  entered  the  United  States  long  prior  to 
the  Act  of  February  20,  1907,  under  the  Act  of  March  3, 
1903,  which  does  not  prohibit  the  entrance  of  such 
laborers;27  nor  where  it  is  issued  for  the  purpose  of 
deporting  an  alien  domiciled  in  the  United  States  on  the 
ground  that  he  imported  an  alien  woman  for  immoral  pur- 
poses when  he  has  already  been  tried  and  acquitted  of  the 
crime  in  the  courts,  as  the  right  to  prosecute  criminally 
and  the  right  to  deport  are  inconsistent  as  concurrent 
rights  and  the  Act  of  March  26,  1910  provides  that  the 
right  to  deport  is  dependent  on  a prior  conviction.28  De- 
portation may  however  be  based  on  a warrant  describing 
a Chinese  woman  as  “Sally  Doe,”  where  it  appears  from 
her  own  testimony  that  she  is  a Chinese  prostitute  and  not 
entitled  to  remain  in  the  United  States.29 

As  to  what  the  warrant  of  the  Secretary  of  Commerce 
and  Labor  shall  contain,  and  as  to  how  far  the  facts  con- 
tained therein  shall  apprise  the  alien  arrested  thereon  of 
the  facts  on  which  his  arrest  is  based,  the  act  contains  no 
provision  whatsoever.  It  may  be  said,  on  the  one  hand, 
that  it  is  no  more  than  fair  that  the  warrant  state  those 
facts  in  such  a way  that  the  alien  is  enabled  thereby  to 
apprehend  the  meaning  of  its  contents  and  be  enabled  to 
prepare  a defense  against  the  proceedings  instituted 
against  him  with  a view  of  depriving  him  of  a home 
perhaps  already  established,  of  association  with  his 
friends  and  relatives,  and,  above  all,  of  the  benefits  of  the 
institutions  of  the  country  which  he  has  chosen  as  the 

27Davies  v.  Manolis,  179  Fed.  818. 

28Lewis  v.  Frick,  189  Fed.  146,  reversed  in  195  Fed.  693 ; and  see  ex  parte 
Pouliot,  196  Fed.  437  in  accord  with  the  reversing  decision  and  sustaining 
the  Secretary’s  warrant  of  arrest. 

2»Wong  Chun  v.  United  States,  170  Fed.  182. 


The  Existing  Immigration  Law. 


271 


land  of  his  domicile,  and  for  which  he  has"  given  up  that 
former  home  to  which  he  has  no  desire  to  return.  On  the 
other  hand,  it  may  be  said  with  regard  to  proceedings 
brought  under  the  immigration  act  that  they  are  not  crimi- 
nal by  nature,  and  that  therefore  the  strict  requirements  of 
criminal  procedure  have  no  application;  that  they,  like 
proceedings  under  the  Chinese  exclusion  acts,  are  simply 
the  mode  provided  by  Congress  for  the  removal  to  their  own 
country  of  aliens  who  have  no  right  to  be  here.  There  is 
no  especial  significance  in  the  word  “warrant”;  the  term 
“order”  might  have  been  used  with  equal  accuracy  in  de- 
scribing the  Secretary’s  authority  for  arresting  an  alien 
found  here  in  disregard  of  the  immigration  law.  But  the 
fact  that  the  word  “warrant”  is  so  frequently  used  in 
criminal  proceedings,  and  that  strict  requirements  are 
observed  in  criminal  procedure  regarding  its  form  and 
contents,  seems,  perhaps,  to  have  unconsciously  swayed 
those  courts  which  have  insisted  upon  a more  or  less  strict 
conventionality  of  statement  and  conformance  to  the  re- 
quirements of  criminal  procedure;  all  of  which  indicates 
that  they  viewed  a proceeding  of  this  nature  more  in  the 
light  of  a prosecution  for  crime — as  far  as  the  actual  effect 
on  the  deportee  is  concerned — than  would  seem  to  be  justi- 
fied either  by  the  nature  of  the  proceedings  or  by  the  de- 
cisions of  the  Supreme  Court. 

The  three  year  period. 

Section  20  of  the  Act’ of  1903  provided  that  the  alien 
falling  thereunder  should  be  deported  within  two  years. 
“The  statute  says  he  shall  be  deported  within  two  years, 
not  that  deportation  proceedings  shall  be  brought  or  com- 
menced, or  that  he  shall  be  held  or  arrested  for  deporta- 
tion within  that  period”30  following  a similar  holding 
under  the  Act  of  March  3,  1891. 31  The  present  section 
says  “taken  into  custody  and  deported,”  and  section  21 

3°Botis  v.  Davies,  173  Fed.  996. 

31  In  re  Russomanno  128  Fed.  528. 


272  The  Exclusion  and  Expulsion  of  Aliens. 


uses  the  words  “taken  into  custody  and  returned.”  Yet 
these  sections  have  been  interpreted  to  mean  that  in  a case 
where  the  three  year  period  will  have  passed  since  the 
entry  of  such  alien  before  deportation  is  physically  pos- 
sible, but  not  where  the  proper  proceedings  have  been  in- 
stituted, the  Secretary  of  Commerce  and  Labor  still  has 
jurisdiction.32  It  has  been  held  that  it  begins  to  run 
from  the  date  of  the  last  entrance  of  the  alien33  and 
on  the  other  hand  that  it  begins  to  run  from  the  time  of 
his  first  entrance  into  the  United  States34  and  that  the 
Government  is  entitled  to  the  whole  of  the  last  day  and  in 
addition  thereto  a reasonable  time  in  which  to  deport.35 
Which  of  these  two  views  is  the  correct  one  seems  to  de- 
pend on  the  meaning  of  the  term  “entry”  taken  in  con- 
nection with  the  general  purpose  and  intent  of  the  immi- 
gration acts.  While  the  proceedings,  as  has  been  shown,36 
are  not  penal  in  nature,  the  effect  upon  the  alien  deported 
under  such  provisions  is  practically  so;  therefore  there  is 
good  ground  for  as  liberal  an  interpretation  thereof  as 
would  not  do  violence  to  the  true  meaning  and  intent  of 
the  statute,  taken  as  a whole.  Moreover  the  effect  of  the 
provisions  of  both  sections,  not  only  on  the  alien  but  on 
the  -transportation  companies  or  agencies  whiclh  ,have 
brought  him  to  this  country,  is  punitive,  and  this  would 
seem  to  afford  additional  ground  for  a strict  construction 
thereof.  Yet  it  should  be  borne  in  mind  that  the  obvious 
purpose  of  these  sections  is  not  so  much  to  place  a hard 
and  fast  limitation  on  the  period  within  which  the  Secre- 
tary of  Commerce  and  Labor  must  deport  persons  falling 
thereunder,  as  to  grant  him  the  full  extent  of  the  three- 
year  period  in  which  to  satisfy  himself  as  to  the  existence 
of  facts  and  circumstances,  often  unavailable  at  the  time 

32United  States  v.  Redfern,  180  Fed.  506. 

33United  States  v.  Hook,  166  Fed.  1007. 

34Redfern  v.  Halpert,  186  Fed.  150. 

35United  States  v.  International  Mercantile  Marine  Co.,  186  Fed.  669. 

s^Ante,  p.  6. 


The  Existing  Immigration  Law. 


273 


of  entry,  which  may  constitute  either  direct  or  inferential 
proof  of  the  lawfulness  or  unlawfulness  of  the  presence  of 
the  parties — and,  after  having  so  determined,  to  institute 
or  refrain  from  instituting  proceedings,  as  the  circum- 
stances may  require.  The  issuance  of  the  Secretary’s  war- 
rant within  the  three-year  period  is  sufficient  to  bring 
about  the  legal  deportation  of  an  alien  found  to  be  here 
within  three  years  after  his  arrival,  although  the  execu- 
tion of  the  order  of  deportation  cannot  take  place  within 
that  period  because  of  the  incarceration  of  the  alien  run- 
ning over  the  period  as  the  result  of  his  conviction  for  a 
crime  committed  in  the  United  States;37  and  as  the  de- 
cision of  board  of  special  inquiry  permitting  an  alien  to 
enter  is  not  final  it  will  constitute  no  bar  to  his  deporta- 
tion within  the  three-year  period.38 

Persons  to  whom  applicable. 

The  aliens  subject  to  arrest  and  deportation  within  the 
three  year  period  are  those  who  enter  the  United  States 
and,  while  aliens,  become  public  charges  from  causes  ex- 
isting prior  to  landing,  or  those  otherwise  subject  to  de- 
portation under  this  act  or  any  law  of  the  United 
States.  It  follows  that  a contract  laborer  who  entered  the 
United  States  as  such  before  the  act  went  into  effect,  and 
under  the  Act  of  1903,  which  did  not  exclude  contract  la- 
borers, is  not  unlawfully  in  the  United  States  under  this 
or  the  preceding  act.39  The  possession  of  a passport  is- 
sued by  a foreign  government  to  an  alien  otherwise  ex- 
cludable is  not  a bar  to  the  operation  of  the  section  with 
regard  to  him;40  nor  it  has  been  held,  can  an  alien  prosti- 
tute who  left  the  United  States  on  March  7,  1908,  after  a 
residence  of  more  than  three  years,  and  returns  in  June, 

37Matsumura  v.  Higgins,  187  Fed.  601. 

38Pearson  v.  Williams,  136  Fed.  734. 

39Botis  v.  Davies,  173  Fed.  996;  Davies  v.  Manolis,  179  Fed.  818. 

4°United  States  v.  Redfern,  180  Fed.  506. 


274  The  Exclusion  and  Expulsion  of  Aliens. 

1908,  claim  exemption  from  the  effects  of  this  section  on 
being  arrested  here  in  September,  1909. 41  This  section 
was  held  likewise  to  apply  to  the  case  of  a Chinese 
woman  who  was  admitted  to  the  United  States  in  1906  as 
the  wife  of  an  American  citizen,  but  was  arrested  within 
the  three  year  period,  after  the  passage  of  the  act,  for 
being  engaged  in  acts  of  prostitution.  Two  facts  in  that 
case  demanded  the  particular  attention  of  the  court;  the 
claim  that  she  assumed  the  status  of  her  husband,  and 
was  thus  not  subject  to  the  operation  of  the  act,  and  that, 
as  section  43  of  the  act  specifically  maintains  in  force  the 
Chinese  exclusion  acts,  she  was  subject  to  their  operation 
only  and  not  to  that  of  the  immigration  act.  But  the 
court  held  that,  although  married  to  an  American  citizen, 
being  Chinese  she  was  not,  under  the  naturalization  laws 
of  the  United  States,  capable  of  naturalization,  and  that, 
whatever  her  rights  were,  they  were  not  those  of  an  Ameri- 
can citizen ; second,  that  section  43  did  not  limit  the  appli- 
cation of  the  present  act  to  aliens  other  than  Chinese.42 
There  was  also  some  question  as  to  whether  or  not  the 
alleged  marriage  was  bona  fide.  The  government  was  not 
of  course  bound  by  the  decision  of  admission  based  on  the 
ground  that  the  marriage  was  made  in  good  faith  and 
could  at  any  time  thereafter,  if  a mock  ceremony  was 
found  to  have  been  entered  into  for  the  sole  purpose  of 
avoiding  the  effect  of  the  exclusion  or  immigration  laws, 
have  the  alien  deported  if  found  to  be  unlawfully  in  the 
United  States. 

Application  of  section  to  Chinese. 

Section  43  contains  the  proviso  that  “this  act  shall  not 
be  construed  to  repeal,  alter,  or  amend  existing  laws  re- 
lating to  the  immigration  or  exclusion  of  Chinese  persons, 
or  persons  of  Chinese  descent.”  The  courts  have 

41  In  re  Hoffman,  179  Fed.  839;  and  see  United  States  v.  Sprung,  187  Fed. 
903. 

*2Looe  Shee  v.  North,  170  Fed.  566. 


The  Existing  Immigration  Law. 


275 


consistently  held  that  the  existence  of  disabilities  which 
exclude  aliens  generally  from  admission  into  the  United 
States  under  this  act  apply  with  equal  force  to  aliens  of 
Chinese  nationality;43  it  follows  that  the  rights  of  an 
alien  as  a Chinese  merchant  cannot  be  brought  in  ques- 
tion in  proceedings  before  the  Department  of  Commerce 
and  Labor  against  him  in  the  capacity  of  an  alien  viola- 
ting the  Immigration  Act  of  February  20,  1907  ;44  nor  can 
a Chinese  alien  who  has  entered  this  country  in  violation 
of  the  Immigration  Laws  claim  as  of  right  a trial  before 
a United  States  Court  as  provided  in  the  Chinese  Exclu- 
sion Acts.45  Nevertheless,  while  the  District  Court,  in 
the  case  of  Ex  parte  Wong  You  et  al.46  was  particularly 
emphatic  in  holding  that  Chinese  persons  unlawfully  in 
the  United  States  are,  equally  with  all  other  aliens,  sub- 
ject to  deportation  under  sections  20  and  21  of  the  immi- 
gration act,  the  Circuit  Court  of  Appeals  for  the  second 
circuit  overruled  that  decision.47  The  exact  question 
at  issue,  decided  in  the  affirmative  by  the  lower  court 
and  in  the  negative  by  the  Circuit  Court  of  Appeals  was 
whether  or  not  sections  20  and  21  apply  to  Chinese  la- 
borers. The  appellate  court  held  that  laborers  of  that 
race,  “being  subject  to  removal  according  to  the  provision 
of  the  Chinese  exclusion  laws,  are  not  subject  to  removal 
in  accordance  with  the  procedure  of  the  immigration 
act ....  Chinese  laborers  are  excluded  by  the  Chinese  act. 
All  other  Chinese  persons,  not  being  excluded  by  that  act 
are  subject  to  the  provisions  of  the  Immigration  Act.  A 
Chinese  laborer,  with  or  without  a loathsome  disease  can- 
not enter  at  all.  The  Chinese  act  covers  the  case...” 
The  ground  of  the  decision,  therefore,  was  the  old  maxim 
cf  law  (£generalia  specialibus  non  derogant” 

The  provision  of  section  21  giving  the  Secretary  of  Com- 

43 In  re  Lee  Shee  Wing,  164  Fed.  506. 

*±Ex  parte  Li  Dick,  176  Fed.  998. 

45 Ex  parte  Li  Dick,  176  Fed.  998. 

46174  Fed.  674. 

47 Ex  parte  Wong  You,  181  Fed.  313.  ) ; 


276  The  Exclusion  and  Expulsion  of  Aliens. 

merce  and  Labor  the  right  to  deport  aliens  found  to  be 
subject  to  deportation  under  the  provisions  of  this  act,  or 
of  any  law  of  the  United  States,  has  already  been  ad- 
verted to.  No  reference  was  made  to  this  provision  by 
the  Circuit  Court  of  Appeals,  which,  in  applying  the  rules 
of  statutory  interpretation  on  which  its  conclusion  was 
based  limited  itself  to  the  consideration  of  the  general 
effect  of  the  immigration  act  on  persons  of  the  Chinese 
race  in  connection  with  section  43  of  the  immigration  act. 
At  the  time  of  the  passage  of  the  present  act,  which  re- 
pealed the  Act  of  March  3,  1903,  and  all  acts  and  parts  of 
acts  inconsistent  with  the  new  act,  but  specifically  kept 
in  force  the  Chinese  exclusion  acts,  the  only  law  of  the 
United  States  dealing  with  the  exclusion  of  aliens  other 
than  such  sections  of  prior  immigration  acts  as  were  not 
inconsistent  with  the  provisions  of  the  Act  of  1907,  was  the 
law  providing  for  the  exclusion  of  Chinese.  It  is  true 
that  in  specific  terms  the  provisions  of  the  Chinese  ex- 
clusion acts  were  kept  in  force;  but  if  the  intention  of 
Congress  was  to  keep  them  in  force  to  the  exclusion  of 
the  operation  of  the  immigration  act  to  the  case  of  Chi- 
nese laborers,  as  a class  deportable  under  the  Chinese  acts, 
the  provision  of  section  21  that  the  Secretary  of  Com- 
merce and  Labor  may  deport  any  alien  found  unlawfully 
in  the  United  States  subject  to  deportation  under  any  law 
of  the  United  States  is  surplusage,  and  devoid  of  any  sig- 
nificance whatsoever.  Since,  however,  it  is  only  as  a last 
resort  that  the  expressions  of  Congress  should  be  viewed 
as  being  wholly  without  meaning,  it  is  proper  to  inquire 
whether,  in  imputing  to  that  body  the  intention  to  make 
both  the  Chinese  exclusion  acts  and  the  immigration  act — 
in  so  far  as  they  provide  for  the  deportation  of  aliens 
found  to  be  unlawfully  in  the  country, — apply  equally  to 
Chinese  laborers,  there  is  any  good  reason  why  Congress 
may  not  do  so. 

The  Circuit  Court  of  Appeals  seems  to  have  been  of  the 


The  Existing  Immigration  Law. 


277 


opinion  that  either  the  Secretary  of  Commerce  and  Labor 
under  this  section,  or  the  United  States  Commissioner 
under  the  Chinese  acts,  had  exclusive  jurisdiction  to  de- 
port Chinese  laborers  found  unlawfully  in  the  United 
States;  in  other  words,  that  both  could  not  have  jurisdic- 
tion over  the  same  class ; that  the  Immigration  act  must  be 
construed  as  being  applicable  to  Chinese  persons  only  in 
so  far  as  it  supplied  the  defects  of  the  Chinese  acts,  and 
that  where,  under  the  latter,  the  terms  of  exclusion  were 
absolute  as  to  a given  class,  the  Immigration  act  could 
not  be  deemed  to  supply  a defect  or  remedy  for  which  there 
was  no  need.  The  question  of  whether  Congress  has  the 
power  to  deport  Chinese  laborers  under  both  the  immigra- 
tion and  Chinese  exclusion  acts  was  not  considered;  the 
court  merely  assumed  that  Congress  did  not  do  so  in  this 
instance;  hence  the  court’s  application  of  the  statutory 
rule  of  interpretation  that  the  immigration  act,  being  a 
general  statute,  silently  excludes  from  its  operation  the 
cases  provided  for  in  the  special  statutes  (the  Chinese  Ex- 
clusion acts)  preceding  it. 

It  is  not  perceived  however,  what  need  exists  for  the 
application  of  this  principle  of  construction.  Leaving 
aside  for  the  moment  all  consideration  of  the  effect  of  the 
general  power  to  deport  vested  in  the  Secretary  under 
section  21,  there  seems  to  be  no  principle  of  international 
or  municipal  law,  by  which  Congress,  as  the  mouthpiece 
of  the  sovereign  State,  is  limited  to  prescribing  any  form 
of  procedure  for  the  purpose  of  exercising  its  inherent 
right  to  exclude  or  expel  aliens  as  long  as  the  modes  desig- 
nated are  not  such  as  to  wantonly  offend  the  law  of  na- 
tions and  are  not  prohibited  by  the  Constitution.  If  this 
view  be  correct  Congress  is  not  limited  to  the  adoption  of 
a single  method,  or  bound  to  exact  uniformity  in  the  modes 
which  it  may  adopt;  and  this  being  so,  it  is  not  perceived 
why  the  courts  should  feel  called  upon  to  designate  which 


278  The  Exclusion  and  Expulsion  of  Aliens. 

form  of  procedure  should  be  followed  to  the  exclusion  of 
the  other.48 

But  if  it  is  alleged  that  by  such  a construction  Chinese 
laborers  are  deprived  of  their  right  under  the  Chinese  ex- 
clusion law  to  a judicial  determination  of  their  right  to 
remain,  it  may  be  pointed  out,  in  the  first  place,  that  it 
is  not  provided  in  terms  by  the  act  that  the  administra- 
tive determination  of  that  right  is  final;  second  that  the 
act  does  not  give  jurisdiction  to  the  Secretary  to  the  gen- 
eral exclusion  of  that  of  United  States  Courts  and  Com- 
missioners, but  provides  that  he  may  pass  on  such  cases 
as  are  brought  administratively ; and  third,  that  assuming 
that  the  effect  of  section  21  was  to  absolutely  deprive  per- 
sons of  the  Chinese  race  coming  within  its  operation  of  the 
right  to  a judicial  determination  of  their  right  to  remain, 
the  power  of  Congress  to  do  this  is  not  open  to  question. 
And  while  it  may  well  be  said  that  the  methods  hitherto 
adopted  under  the  provisions  of  the  exclusion  laws  for  the 
deportation  of  Chinese  persons  similarly  circumstanced 
have  seemed  sufficiently  drastic,  the  provisions  of  section 
21  if  applicable  to  them,  have  at  least  the  merit  that  they 
do  not  single  them  out  as  the  special  objects  of  onerous 
legislation,  but  deal  with  them  on  an  equal  basis  together 
with  all  aliens  of  other  nations  unlawfully  in  the  United 
States. 

Whether  or  not  this  section  applies  to  aliens  who  have 
already  acquired  a residence  in  the  United  States,  and  re- 
turn to  resume  it,  depends  in  part  on  whether  or  not  the 
word  “entry”  is  meant  to  include  the  act  of  entering  the 
United  States  as  an  incident  of  such  return.  As  this  in- 
volves the  broad  question  as  to  whether  or  not  the  immi- 
gration act  is  applicable  to  aliens  who  have  already  estab- 
lished a domicile  in  the  United  States,  which  is  discussed 

48This  case  was  reversed  by  the  Supreme  Court  of  the  United  States 
in  the  case  of  United  States  v.  Wong  You,  223  U.  S.  67,  56  Law  Ed. . 


The  Existing  Immigration  Law. 


279 


elsewhere49  it  would  seem  to  require  no  further  comment 
at  this  point. 

Under  this  section,  as  well  as  under  the  provisions  of 
the  exclusion  acts  relative  to  the  extent  of  proof  of  lawful 
presence  of  the  alien  in  this  country,  the  test  is  simply 
whether  or  not  the  proof  satisfies  the  Secretary  of  Com- 
merce and  Labor  that  the  alien’s  presence  is  lawful.493. 
The  extent  to  which  the  decision  of  the  Secretary  (or 
that  of  a board  of  special  inquiry  in  cases  of  entry) 
is  binding  on  the  courts  is  made  the  subject  of  another 
chapter  hereof.50 

Sec.  22.  That  the  Commissioner-General  of  Immigra- 
tion, in  addition  to  such  other  duties  as  may  by  law  be 
assigned  to  him,  shall,  under  the  direction  of  the  Secre- 
tary of  Commerce  and  Labor,  have  charge  of  the  adminis- 
tration of  all  laws  relating  to  the  immigration  of  aliens 
into  the  United  States,  and  shall  have  the  control,  direc- 
tion, and  supervision  of  all  officers,  clerks,  and  employees 
appointed  thereunder.  He  shall  establish  such  rules  and 
regulations,  prescribe  such  forms  of  bond,  reports,  en- 
tries, and  other  papers,  and  shall  issue  from  time  to  time 
such  instructions,  not  inconsistent  with  law,  as  he  shall 
deem  best  calculated  for  carrying  out  the  provisions  of 
this  act  and  for  protecting  the  United  States  and  aliens 
migrating  thereto  from  fraud  and  loss,  and  shall  have 
authority  to  enter  into  contract  for  the  support  and  re- 
lief of  such  aliens  as  may  fall  into  distress  or  need  public 
aid;  all  under  the  direction  or  with  the  approval  of  the 
Secretary  of  Commerce  and  Labor.  And  it  shall  be  the 
duty  of  the  Commissioner-General  of  Immigration  to  de- 
tail officers  of  the  immigration  service  from  time  to  time 
as  may  be  necessary,  in  his  judgment,  to  secure  informa- 
tion as  to  the  number  of  aliens  detained  in  the  penal,  re- 
formatory, and  charitable  institutions  (public  and  pri- 
vate) of  the  several  States  and  Territories,  the  District  of 

49Chapter  on  Status,  post , p.  427. 

49aBut  in  proceedings  under  the  immigration  act  the  Government  must 
make  out  a prima  facie  case  of  unlawful  presence. 

soChapter  on  the  Judicial  Review  of  Administrative  Decisions,  post,  p. 
477. 


280  The  Exclusion  and  Expulsion  of  Aliens. 


Columbia,  and  other  territory  of  the  United  States  and  to 
inform  the  officers  of  such  institutions  of  the  provisions 
of  law  in  relation  to  the  deportation  of  aliens  who  have 
become  public  charges : Provided,  That  the  Commissioner- 
General  of  Immigration  may,  with  the  approval  of  the 
Secretary  of  Commerce  and  Labor,  whenever  in  his  judg- 
ment such  action  may  be  necessary  to  accomplish  the  pur- 
poses of  this  act,  detail  immigration  officers,  and  also  sur- 
geons, in  accordance  with  the  provisions  of  section  seven- 
teen, for  service  in  foreign  countries. 

Departmental  Rules  and  Regulations. 

The  only  limitation  imposed  on  the  discretion  vested  in 
the  Commissioner-General  of  Immigration  (under  the  di- 
rection of  the  Secretary  of  Commerce  and  Labor)  to  pre- 
scribe departmental  rules  supplementary  to  the  provisions 
of  the  act  seems  to  be  that  such  rules  shall  not  be  incon- 
sistent with  the  act  itself,  and  shall  be  calculated  for  car- 
rying out  its  provisions  and  for  protecting  the  United 
States  and  aliens  immigrating  thereto  from  loss  or  fraud. 
The  validity  of  departmental  rules  issued  under  the  au- 
thority of  the  Secretary  of  Commerce  and  Labor,  both  in 
connection  with  the  Chinese  exclusion  laws  and  the  im- 
migration acts  ( or  of  the  Secretary  of  the  Treasury  before 
him ) has  been  passed  upon  not  infrequently  by  the  courts. 
They  have  the  force  and  effect  of  law  when  not  incon- 
sistent with  the  provisions  of  the  acts  themselves,  or  of 
the  constitution  of  the  United  States,  or  the  treaties  of 
this  country  with  foreign  powers,  and  are  binding  on  the 
courts.82  It  follows  that  where  the  only  immediate  au- 
thority for  departmental  acts  is  to  be  found  in  the  rules 
themselves,  the  validity  depends  on  whether  or  not  they 
fulfil  the  requirements  of  the  departmental  regulations. 
Thus  where  the  rules  of  the  Department  of  Commerce  and 
Labor  designate  the  conditions  under  which  warrants  of 
deportation  shall  issue,  they  can,  in  order  to  be  valid, 

62 Ex  parte  Chow  Chok,  161  Fed.  627 ; Fok  Young  Yo  v.  United  States, 
185  U.  S.  296,  46  Law  Ed.  917. 


The  Existing  Immigration  Law.  281 

issue  only  as  prescribed  by  the  conditions  set  out.63 

Sometimes  the  rules  are  not  only  authorized  by  the  pro- 
visions of  the  municipal  law,  but  by  treaty  as  well.  Thus 
the  departmental  regulations  of  September  28,  1889,  the 
purpose  of  which  was  to  enable  Chinese  persons  to  exer- 
cise the  privilege  of  transit  across  the  United  States, 
being  in  force  at  the  time  of  the  ratification  of  the  treaty 
of  December  8,  1894,  between  the  United  States  and 
China,  were  not  only  authorized  by  section  8 of  the  Act 
of  September  13,  1888,  but  by  the  treaty  itself,  which  pro- 
vided for  the  privilege  of  transit,  and  recognized  the  va- 
lidity of  those  regulations,  and  agreed  to  the  modification 
thereof  which  took  the  form  of  the  regulations  of  Decem- 
ber 8,  1900.54 

The  power  to  prescribe  rules  for  the  enforcement  of  the 
immigration  or  Chinese  exclusion  acts  includes  the  power 
to  prescribe  rules  of  evidence  relating  to  presumptions 
and  to  the  burden  of  proof  in  determining  an  alien’s  right 
to  admission.55  But  the  application  of  the  rules  can  ex- 
tend only  to  persons  subject  to  the  operation  of  the  act; 
thus  in  construing  the  application  of  old  rules  1 and  2 of 
the  Department  of  Commerce  and  Labor,  they  were  held 
to  apply  only  to  aliens  entering  the  United  States  for  the 
first  time,  and  not  to  returning  aliens.56  Although  the  pay- 
ment of  a head  tax  was  not  required  of  aliens  in  transit 
by  the  Act  of  1903,  Rule  15  of  the  Immigration  regula- 
tions of  August  1903  (rule  1 of  the  present  regulations), 
issued  for  the  purpose  of  enforcing  that  act  and  requiring 
a deposit  of  the  amount  of  the  head  tax  by  the  masters  or 
owners  of  the  vessels  bringing  aliens  to  United  States 
ports,  was  held  valid,57  as  was  rule  24  of  the  regulations 
of  July  1907  (New  Rule  12),  which  designates  certain 

63 Ex  parte  Avakian,  188  Fed.  688. 

54Fok  Young  Yo  v.  United  States,  185  U.  S.  296,  46  Law  Ed.  917;  In  re 
Lee  Gon  Yung,  111  Fed.  998. 

55 In  re  May  Quong  Shing,  125  Fed.  641. 

6QEx  parte  Ng  Quong  Miung,  135  Fed.  378. 

57Stratton  v.  Oceanic  Co.,  140  Fed.  829. 


282  The  Exclusion  and  Expulsion  of  Aliens. 


ports  on  the  Canadian  border  as  ports  of  entry  for  aliens, 
and  provides  that  any  alien  entering  across  the  border  at 
any  other  point  shall  be  deemed  to  have  entered  unlaw- 
fully, and  shall  be  arrested  and  deported.58 

On  the  other  hand,  rule  21  of  the  Immigration  Regula- 
tions of  July  1907  (present  rule  11),  providing  that,  if 
Japanese  or  Korean  laborers  present  themselves  for  ad- 
mission without  passports,  it  shall  be  presumed  (1)  that 
they  did  not  possess  on  departure  from  Japan  or 
Korea  any  passport  entitling  them  to  come  to  this  country, 
and  (2)  that  they  did  possess  at  that  time  a passport  lim- 
ited to  Mexico,  Canada  or  Hawaii,  has  been  held  invalid,  as 
beyond  the  power  of  the  Commissioner-General  to  pre- 
scribe.69 The  Court,  was,  however,  apparently  unaware 
that  the  rule  which  included  this  provision  was  prescribed 
by  the  Secretary  in  the  exercise  of  the  authority  con- 
ferred upon  him  by  this  section  and  the  additional  powers 
conferred  upon  him  by  the  President’s  proclamation  of 
March  14,  1907.  This  proclamation  was  issued  in  ac- 
cordance with  the  proviso  of  section  1 of  this  act — already 
adverted  to,60 — authorizing  the  president  to  prohibit  the 
entrance  of  alien  laborers  into  this  country  whenever  it 
should  appear  that  passports  issued  to  them  by  their  re- 
spective sovereigns  were  being  used  to  the  detriment  of 
labor  conditions  in  this  country.  Availing  himself  of  the 
powers  thus  conferred,  the  Secretary  of  Commerce  and 
Labor  reached  an  understanding  with  the  appropriate 
Japanese  authorities  whereby  it  was  agreed,  among  other 
things,  that  the  specific  regulations  which  met  with  the 
Court’s  disapproval  in  the  decision  above  cited  should  go 
into  effect.81 

Again,  rule  23  of  the  Chinese  Regulations  of  1903,  re- 

68  Ex  parte  Hamaguchi,  161  Fed.  185. 

59United  States  v.  Hemet,  156  Fed.  285. 

so  Ante,  p.  201. 

6iSee  Annual  Report  of  Commissioner  General  of  Immigration  for  1910. 


The  Existing  Immigration  Law. 


283 


quiring  that  section  6 certificates  presented  at  ports  of 
entry  by  Chinese  persons  should  be  retained  in  the  pos- 
session of  the  Government  officials,  was  held  invalid  on 
the  ground  that  the  certificates,  being  the  sole  evidence  on 
which  the  right  to  enter  or  remain  could  be  established 
should  not  be  taken  from  the  persons  interested  in  the 
establishment  of  that  right.62  While  the  general  principle 
on  which  the  decision  turned  seems  unquestionably  sound 
it  is  not  thought,  nor  does  the  Department  take  the  posi- 
tion, that  absence  of  such  a certificate  from  the  possession 
of  a Chinese  person  of  the  exempt  class  resident  in  this 
country  renders  him  ipso  facto  liable  to  deportation.  It 
may  be  added  that  while  the  Act  of  1882  as  amended 
makes  the  certificate  the  only  evidence  whereby  the  right 
to  enter  may  be  proven,  no  provision  exists  in  any  of  the 
acts  regarding  the  exclusion  of  Chinese  to  the  effect  that 
it  shall  constitute  the  only  evidence  of  the  right  to  remain. 
Another  example  of  where  a departmental  rule  was  held 
invalid  is  to  be  found  in  a decision  rendered  in  a com- 
paratively early  case,63  where  the  Court  held  Treasury 
Department  Circular  of  October  19,  1897,  authorizing  the 
exclusion  and  deportation  of  one  parent  of  a diseased 
minor  alien  invalid  and  unwarranted  by  the  statutes  then 
in  force. 

Provisions  for  the  relief  or  support  of  aliens. 

So  much  of  this  section  as  confers  authority  upon  the 
Commissioner-General  to  enter  into  contracts  for  the  sup- 
port and  relief  of  aliens  who  fall  into  distress  or  need 
public  aid  is  supplemented  by  rule  24  of  the  Departmental 
regulations,  which  provides  that  any  alien  who  is  a lawful 
resident  of  the  United  States  and  who  has  become  a public 
charge  from  physical  disability  arising  subsequent  to 
landing  may,  with  his  consent  and  the  approval  of  the 
Bureau,  be  deported  within  one  year  from  date  of  landing, 

62Toy  Tong  v.  United  States,  146  Fed.  343. 

63 In  re  Kornmehl,  87  Fed.  314. 


284  The  Exclusion  and  Expulsion  of  Aliens. 


at  Government  expense,  provided  he  is  delivered  to  the 
Immigration  officers  at  a designated  port  free  of  charge. 
If  the  alien’s  deportation  is  directed,  the  charges  incurred 
for  his  care  and  treatment  in  any  public  or  charitable  in- 
stitution, from  the  date  of  notification  to  an  immigra- 
tion officer  until  the  expiration  of  one  year  after  landing, 
may  be  paid  by  the  Bureau  at  such  rates  as  it  shall  accept 
as  reasonable. 

Sec.  23.  That  the  duties  of  the  Commissioners  of  Immi- 
gration shall  be  of  an  administrative  character,  to  be  pre- 
scribed in  detail  by  regulations  to  be  prepared  under  the 
direction  or  with  the  approval  of  the  Secretary  of  Com- 
merce aiid  Labor. 

The  deportation  regulations  contain  no  provisions  is- 
sued with  direct  reference  to  this  section;  but  commis- 
sioners of  immigration  and  other  officials  in  charge  of  im- 
migration stations,  or  districts  perform  their  duties  in  ac- 
cordance with  instructions,  oral  or  written,  issued  from 
time  to  time  by  the  Commissioner-General  or  the  Secre- 
tary of  Commerce  and  Labor. 

Sec.  24.  That  immigrant  inspectors  and  other  immigra- 
tion officers,  clerks,  and  employees  shall  hereafter  be  ap- 
pointed and  their  compensation  fixed  and  raised  or  de- 
creased from  time  to  time  by  the  Secretary  of  Commerce 
and  Labor,  upon  the  recommendation  of  the  Commis- 
sioner-General of  Immigration  and  in  accordance  with 
the  provisions  of  the  civil-service  Act  of  January  sixteenth, 
eighteen  hundred  and  eighty- three : Provided , That  said 
Secretary,  in  the  enforcement  of  that  portion  of  this  act 
which  excludes  contract  laborers,  may  employ,  without 
reference  to  the  provisions  of  the  said  civil-service  act,  or 
to  the  various  acts  relative  to  the  compilation  of  the  offi- 
cial register,  such  persons  as  he  may  deem  advisable  and 
from  time  to  time  fix,  raise,  or  decrease  their  compensa- 
tion. He  may  draw  from  the  immigrant  fund”  annually 
fifty  thousand  dollars,  or  as  much  thereof  as  may  be 
necessary,  to  be  expended  for  the  salaries  and  expenses 


The  Existing  Immigration  Law. 


285 


of  persons  so  employed  and  for  expenses  incident  to  such 
employment;  and  the  accounting  officers  of  the  Treasury 
shall  pass  to  the  credit  of  the  proper  disbursing  officer  ex- 
penditures from  said  sum  without  itemized  account  when- 
ever the  Secretary  of  Commerce  and  Labor  certifies  that 
an  itemized  account  would  not  be  for  the  best  interests  of 
the  Government:  Provided  further , That  nothing  herein 
contained  shall  be  construed  to  alter  the  mode  of  appoint- 
ing commissioners  of  immigration  at  the  several  ports  of 
the  United  States  as  provided  by  the  sundry  civil  appro 
priation  act  approved  August  eighteenth,  eighteen  hun- 
dred and  ninety-four,  or  the  official  status  of  such  com- 
missioners heretofore  appointed.  Immigration  officers 
shall  have  power  to  administer  oaths  and  to  take  and  con- 
sider evidence  touching  the  right  of  any  alien  to  enter  the 
United  States,  and,  where  such  action  may  be  necessary, 
to  make  a written  record  of  such  evidence;  and  any  per- 
son to  whom  such  an  oath  has  been  administered  under 
the  provisions  of  this  act  who  shall  knowingly  or  wilfully 
give  false  evidence  or  swear  to  any  false  statement  in  any 
way  affecting  or  in  relation  to  the  right  of  any  alien  to 
admission  to  the  United  States  shall  be  deemed  guilty  of 
perjury  and  be  punished  as  provided  by  section  fifty- three 
hundred  and  ninety-two,  United  States  Revised  Statutes. 
The  decision  of  any  such  officer,  if  favorable  to  the  admis- 
sion of  any  alien,  shall  be  subject  to  challenge  by  any  other 
immigration  officer,  and  such  challenge  shall  operate  to 
take  the  alien  whose  right  to  land  is  so  challenged  before 
a board  of  special  inquiry  for  its  investigation.  Every 
alien  who  may  not  appear  to  the  examining  immigrant 
inspector  at  the  port  of  arrival  to  be  clearly  and  beyond  a 
doubt  entitled  to  land  shall  be  detained  for  examination 
in  relation  thereto  by  a board  of  special  inquiry. 

In  the  ordinary  run  of  cases  a favorable  decision  of  the 
immigration  officer  at  the  port  granting  the  alien  leave  to 
enter  the  United  States  is  the  last  step  to  be  taken  by  the 
alien  in  connection  with  the  establishment  of  his  admissi- 
bility. But  even  the  facts  on  which  a favorable  decision 
is  based  can  reach  the  board  of  special  inquiry  at  the  port, 
established  by  section  25,  in  case  its  correctness  or  le- 
gality is  challenged  by  any  other  immigration  inspector. 


286  The  Exclusion  and  Expulsion  of  Aliens. 


Even  though  the  decision  is  not  challenged,  and,  by  au- 
thority thereof,  the  alien  is  duly  admitted,  the  proceedings 
under  which  he  was  admitted,  not  being  judicial  but  ad- 
ministrative in  nature,  the  decision,  is  not  res  judicata. 
The  fact  that  the  Secretary  of  Commerce  and  Labor  is 
given  the  power  by  law  to  return  aliens  found  by  him  to 
be  unlawfully  within  the  United  States  within  three  years 
after  entry,  shows  that  this  must  necessarily  be  so;  and 
such  has  been  the  result  of  judicial  opinion  expressed  in 
passing  on  the  point  of  the  legal  effect  of  such  decisions  of 
executive  officers.64 

A decision  favorable  to  admission  cannot,  under  this 
section,  be  rendered  by  the  Immigrant  inspector  unless 
the  alien  seeking  admission  appears  to  him  to  be  clearly 
and  beyond  a doubt  entitled  to  land.  If  the  alien  does  not 
so  appear  to  the  inspector  he  is  to  be  detained  for  further 
examination  in  relation  thereto  by  the  board  of  special 
inquiry  already  mentioned. 

Powers  of  Inspection  Officers  relative  to  admission  of 

aliens. 

The  powers  of  immigration  officers  making  what  is 
commonly  known  the  “primary”  or  “line”  inspection  rela- 
tive to  the  admission  or  the  rejection  of  aliens  under  the 
act  may  be  summed  up  as  follows:  Inspectors  have  the 
power  to  pass  such  aliens  but  they  are  without  power  to 
render  a decision  refusing  admission.  As  a matter  of 
course  such  cases  are  referred  to  the  board  of  special  in- 
quiry. And  it  has  been  held  that  an  inspector  who  has  in 
any  given  case  refused  to  pass  an  alien  on  primary  in- 
spection is  not  qualified  to  pass  on  the  merits  thereof  if 
sitting  on  the  board  of  special  inquiry  to  which  the  case 
is  referred.66  This,  however,  is  the  only  decision  on  the 

64Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029;  Lew  Quen  Wo  v. 
United  States,  184  Fed.  685;  Ex  parte  Stancampiano,  161  Fed.  164; 
Mar  Bing  Guey  v.  United  States,  97  Fed.  576. 

tfsUnited  States  v.  Redfern,  180  Fed.  500. 


The  Existing  Immigration  Law. 


287 


point,  and  its  soundness  is  possibly  open  to  question,  as 
it  proceeds  on  the  theory  that  the  board’s  hearing  is  in  the 
nature  of  an  appeal  from  the  “decision”  of  the  inspector 
who  conducted  the  primary  inspection,  and  that  therefore 
it  is  to  be  assumed  that  a board  so  constituted  would  con- 
tain one  member  who  might  not  pass  upon  the  question  of 
the  alien’s  admissibility  with  an  open  mind;  whereas,  the 
procedure  does  not  in  any  degree  partake  of  the  nature  of 
an  appeal,  the  primary  inspector  having  no  power  to  ren- 
der a decision.  His  authority  is  limited  by  law  to  detain 
the  alien  for  special  enquiry,  if  he  is  not  fully  satisfied  that 
the  former  is  beyond  a doubt  entitled  to  land. 

False  statements  made  to  inspecting  officers . 

While  there  seems  to  be  a dearth  of  reported  decisions 
bearing  directly  upon  so  much  of  this  section  as  relates  to 
perjury  committed  in  connection  with  the  application  of 
an  alien  to  enter,  it  is  understood  that,  in  several  in- 
stances at  least,  witnesses  have  been  convicted  for  false 
swearing  under  these  circumstances.  In  order  to  justify 
such  conviction,  however,  there  seems  to  be  little  doubt 
that  the  false  statements  which  constitute  the  basis  of  the 
charge  must  be  made  with  reference  to  statements  ma- 
terial to  the  right  of  the  alien  to  enter.66  Whether  or  not 
the  commission  of  this  offense  affects  the  admissibility  of 
the  alien,  depends  necessarily  on  whether  the  result 
thereof  is  to  place  him  within  one  of  the  excluded  classes ; 
and  this  in  turn  depends  on  whether  or  not  the  commission 
of  an  act  of  perjury  is  included  among  those  which  operate 
to  exclude.  Not  being  specifically  enumerated  among 
those  classified  as  causes  of  exclusion  the  question  arises 

66A  statement  made  by  the  applicant  regarding  his  final  destination  does 
not  concern  the  alien’s  right  to  land  any  more  than  the  fact  of  his  occu- 
pation and  last  residence,  and  'where,  in  the  examination  of  aliens  applying 
for  admission  to  the  United  States  (Hawaii)  a failure  on  his  part  to  give 
information  not  called  for  or  suggested  by  the  line  of  inquiry,  is  not  a 
ground  for  a charge  of  perjury.  United  States  v.  Yamamoto,  3 U.  S.  D.  Ct. 
Hawaii  224;  and  see  United  States  v.  Martin,  193  Fed.  795. 


288  The  Exclusion  and  Expulsion  of  Aliens. 

as  to  whether  it  is  included  in  a general  class  of  offenses 
the  conviction  or  admission  of  which  by  the  alien  bars  him 
from  admission.  It  would  seem  that  the  only  classifica- 
tion contained  in  the  act  in  which  the  offense  of  perjury 
could  properly  take  its  place  is  “felony  or  other  crime  or 
misdemeanor  involving  moral  turpitude.”  Conceding  that 
such  is  the  case,  and  bearing  in  mind  that  the  conviction 
of  such  an  offense  or  the  fact  of  its  commission  if  ad- 
mitted, must,  in  order  to  justify  exclusion  under  the  law, 
have  taken  place  prior  to  the  alien’s  entry  into  the  coun- 
try, can  (I)  a conviction  of  an  alien  for  false  swearing  to 
an  inspecting  officer  concerning  his  right  to  land,  and  prior 
to  the  determination  of  that  right  render  him  subject  to 
deportation,  or  (2)  can  he  be  legally  deported  on  the 
ground  of  having  admitted  the  commission  of  an  offense 
involving  moral  turpitude  where  it  is  found  that  he  has 
admitted,  prior  to  being  allowed  to  enter  the  United  States, 
that  he  has  made  false  statements  under  oath  to  a depart- 
mental officer  concerning  his  right  to  land? 

It  seems  plain,  in  view  of  the  consensus  of  judicial 
opinion  on  the  point,67  that  in  the  case  of  (I)  his  convic- 
tion, taking  place  in  the  United  States  for  an  offense  com- 
mitted against  the  laws  of  the  United  States,  does  not 
place  him  in  the  excluded  classes  enumerated  in  section 
2;  in  the  case  of  (2)  the  same  result  would  seem  to  follow 
unless  it  is  to  be  assumed  that  the  offense  on  the  admis- 
sion of  which  it  is  sought  to  deport  the  alien  was  com- 
mitted prior  to  his  application  for  admission.  It  is  per- 
fectly true  that  for  certain  purposes  an  alien  is  not  to  be 
deemed  to  have  entered  the  United  States  until  he  has 
been  regularly  admitted  in  accordance  with  law.  But 
when  Congress  goes  so  far  as  to  define  as  a crime  against 
the  laws  of  the  United  States  an  act  committed  before  ad- 
mission, the  alien  committing  it  must,  for  the  purposes  at 
least  of  that  offense  and  its  legal  consequences  under 

giEx  parte  Saraeeno,  182  Fed.  955. 


The  Existing  Immigration  Law. 


289 


either  the  immigration  act  or  the  criminal  laws  of  the 
United  States,  be  deemed  to  be  within  the  United  States. 
For  to  concede  that  an  act  is  punishable  by  a State  is  to 
concede  that  it  is  committed  in  violation  of  the  laws  of 
that  state ; and  the  violation  of  such  laws  must  necessarily 
be  predicated  on  the  commission  of  the  proscribed  act 
within  the  territorial  limits  of  the  law-making  power. 


Sec.  25.  That  such  boards  of  special  inquiry  shall  be  ap- 
pointed by  the  commissioner  of  immigration  at  the  various 
ports  of  arrival  as  may  be  necessary  for  the  prompt  deter- 
mination of  all  cases  of  immigrants  detained  at  such  ports 
under  the  provisions  of  law.  Each  board  shall  consist  of 
three  members,  who  shall  be  selected  from  such  of  the  im- 
migrant officials  in  the  service  as  the  Commissioner  Gen- 
eral of  Immigration,  with  the  approval  of  the  Secretary 
of  Commerce  and  Labor,  shall  from  time  to  time  designate 
as  qualified  to  serve  on  such  boards:  Provided , That  at 
ports  where  there  are  fewer  than  three  immigrant  inspect- 
ors, the  Secretary  of  Commerce  and  Labor,  upon  the  rec- 
ommendation of  the  Commissioner  General  of  Immigra- 
tion, may  designate  other  United  States  officials  for  serv- 
ice on  such  boards  of  special  inquiry.  Such  boards  shall 
have  authority  to  determine  whether  an  alien  who  has 
been  duly  held  shall  be  allowed  to  land  or  shall  be  de- 
ported. All  hearings  before  boards  shall  be  separate  and 
apart  from  the  public,  but  the  said  boards  shall  keep  a 
complete  permanent  record  of  their  proceedings  and  of  all 
such  testimony  as  may  be  produced  before  them;  and  the 
decision  of  any  two  members  of  a board  shall  prevail,  but 
either  the  alien  or  any  dissenting  member  of  the  said 
board  may  appeal  through  the  commissioner  of  immigra- 
tion at  the  port  of  arrival  and  the  Commissioner  General 
of  Immigration  to  the  Secretary  of  Commerce  and  Labor, 
and  the  taking  of  such  appeal  shall  operate  to  stay  any 
action  in  regard  to  the  final  disposal  of  any  alien  whose 
case  is  so  appealed  until  the  receipt  by  the  commissioner 
of  immigration  at  the  port  of  arrival  of  such  decision 
which  shall  be  rendered  solely  upon  the  evidence  adduced 
before  the  board  of  special  inquiry:  Provided , That  in 
every  case  where  an  alien  is  excluded  from  admission  into 
the  United  States,  under  any  law  or  treaty  now  existing 


290  The  Exclusion  and  Expulsion  of  Aliens. 

or  hereafter  made,  the  decision  of  the  appropriate  im- 
migration officers,  if  adverse  to  the  admission  of  such 
alien,  shall  be  final,  unless  reversed  on  appeal  to  the  Sec- 
retary of  Commerce  and  Labor ; but  nothing  in  this  section 
shall  be  construed  to  admit  of  any  appeal  in  the  case  of 
an  alien  rejected  as  provided  for  in  section  ten  of  this  act. 

Rule  15  contains  the  following  special  instruction  for 
boards  of  special  inquiry : 

1.  Every  person  appointed  to  serve  on  a board  of  special 
inquiry  shall  first  subscribe  to  an  oath  of  office. 

2.  Boards  of  special  inquiry  shall  determine  all  cases 
as  promptly  as  in  the  estimation  of  the  immigration  officer 
in  charge  the  circumstances  permit,  due  regard  being  had 
to  the  necessity  of  giving  the  alien  a fair  hearing. 

3.  An  excluded  alien  shall  be  informed  that  the  return 
voyage  is  at  the  expense  of  the  steamship  company  which 
brought  him  and  the  fact  that  he  has  been  so  informed 
entered  in  the  minutes. 

Authority  of  Board  to  Determine  an  Alien’s  Right  to  Land. 

Only  when  the  facts  on  which  the  claim  of  the  alien 
to  land  is  based  are  referred  by  the  inspector  who  has 
refused  to  admit  him  to  the  board  of  special  inquiry  does 
the  question  properly  arise  as  to  whether  he  is  to  be  ad- 
mitted or  rejected.  Whether  the  decision  of  the  board  re- 
fusing landing  is  final  and  conclusive  depends  on  the 
nature  of  the  causes  of  rejection,  which  are  hereinbefore 
discussed  in  connection  with  section  10.68  No  cases  other 
than  those  covered  by  section  10  can  be  determined  finally 
by  the  board  in  its  excluding  decision,  unless  the  applicant 
should  fail  to  avail  himself  of  his  right  to  appeal  to  the 
Secretary,  in  which  event  the  board’s  decision  becomes 
necessarily  final.  ‘ 


68 Ante,  p.  237. 


The  Existing  Immigration  Law. 


291 


Nature  of  Hearings  Before  the  Board. 

Employment  of  Counsel. 

While  Rule  22  of  the  immigration  rules  relating  to  the 
deportation  of  aliens  arrested  under  the  warrant  of  the 
Secretary  of  Commerce  and  Labor  provides69  that  at  a cer- 
tain stage  of  the  proceedings,  and  on  the  alien’s  request 
counsel  may  be  admitted  to  the  hearing,  there  is  no  such 
provision  regarding  hearings  before  a board  of  special 
inquiry  where  the  right  of  the  alien  to  enter  is  the  only 
issue.  In  the  absence  of  such  a provision  from  both  the 
act  and  the  rules  issued  for  the  enforcement  thereof,  it  is 
plain  that  the  right  to  be  represented  at  such  hearing  can- 
not be  successfully  claimed,  for  there  is  nothing  in  the 
nature  of  deportation  proceedings  which  can  give  just 
grounds  for  such  a contention.70  As  the  acts  themselves 
do  not  authorize  the  admission  of  counsel,  if  allowed  under 
ceTtain  conditions  by  executive  officers  entrusted  with 
the  enforcement  of  the  acts,  such  allowance  constitutes 
merely  a privilege,  not  a right.  The  above  remarks  apply 
only  to  the  counsel  at  the  hearings,  not  to  their  employ- 
ment by  aliens  seeking  admission  or  by  their  friends  on 
their  behalf,  in  connection  with  their  application  to  enter 
or  their  appeal  from  an  excluding  decision. 

Rule  31  contains  the  following  special  provisions  with 
regard  to  the  employment  of  counsel: 

1.  Admission  to  practice. — Every  person  desiring  to  ap- 
pear on  behalf  of  an  alien  may  be  required  to  submit  proof 
to  show  that  he  is  a person  of  good  character  and  reputa- 
tion, and  if  such  proof  fails  to  satisfy  the  immigration 
officer  in  charge,  he  shall  forward  it  to  the  bureau  for  de- 
termination as  to  whether  or  not  such  person  shall  be 
permitted  to  practice  before  the  immigration  authorities. 
Any  unseemly  or  unprofessional  conduct  on  the  part  of 
an  attorney  shall  be  similarly  reported  to  the  bureau. 

69Subdivision  4. 

reunited  States  v.  Sing  Tuck,  184  U.  S.  161,  48  Law  Ed.  917. 


292  The  Exclusion  and  Expulsion  of  Aliens. 

2.  Change  of  representative. — Pending  an  appeal  or 
warrant  proceedings  no  alien  shall  change  his  representa- 
tive except  upon  such  reasonable  terms  as  the  immigra- 
tion officer  in  charge  shall  prescribe,  nor  shall  such  change 
be  permitted  to  delay  the  conduct  or  disposition  of  a mat- 
ter pending. 

3.  Fees  of  attorneys. — Attorneys  and  persons  appear- 
ing in  behalf  of  aliens  applying  for  admission  shall  not 
charge  a sum  exceeding  ten  dollars  in  each  case  unless 
the  immigration  officer  in  charge  shall  in  writing  allow 
an  additional  compensation.  A family  or  party  of  aliens 
traveling  together  shall  be  regarded  as  constituting  a 
single  case  within  the  meaning  hereof.  If  an  attorney 
deems  himself  entitled  to  a larger  fee  or  if  it  is  necessary 
for  him  to  incur  expenses,  he  shall  report  the  fact  to  the 
immigration  officer  in  charge  when  applying  for  the  privi- 
lege of  charging  an  additional  fee  or  claiming  reimburse- 
ment for  expenses.  If  permission  be  granted,  he  shall 
collect  such  additional  fee  and  expenses  only  through  the 
immigration  officer  in  charge. 

Disbarment  of  Attorneys. 

Anyone  charging  an  alien  a fee  prior  to  his  detention, 
or  charging  or  receiving  from  an  alien  or  his  relatives  or 
friends  a fee,  gift,  or  compensation  for  his  services  in 
excess  of  the  above  rate  except  in  the  manner  provided,  or 
who  shall  deprive  an  alien  of  any  part  of  his  chattels  or 
effects  in  lieu  of  or  as  security  for  said  fee,  will,  if  unable 
after  a fair  opportunity  to  answer  the  complaint  be  dis- 
barred by  the  Department  (to  which  a full  report  of  the 
matter  shall  be  made)  from  practising  at  any  immigration 
station  of  the  United  States. 

Finality  of  Board’s  Decision. 

In  the  corresponding  section  of  March  3,  1903,  it  was 
provided  that  the  decision  of  the  board  should  “prevail 
and  be  final”  in  the  absence  of  appeal  taken  to  the  Secre- 


The  Existing  Immigration  Law. 


293 


tary  of  Commerce  and  Labor  by  the  rejected  alien.  This 
wording  gave  rise  to  the  contention  that  in  the  ab- 
sence of  such  appeal  the  favorable  decision  of  the 
board  was  final  and  binding  on  the  Secretary,  and 
thereby  deprived  him  of  jurisdiction  to  deport  the 
alien  thus  admitted  within  the  three  year  period. 
The  correctness  of  this  view  was  denied  first  in  the 
case  of  Pearson  against  Williams,71  and  again  on  ap- 
peal from  the  decision  to  the  Supreme  Court  of  the 
United  States.72  While  the  lower  court  held  that  the 
decision  of  the  board  was  final  as  to  the  right  of  the  alien 
to  land  it  took  the  view  that  such  decision  did  not  consti- 
tute a final  determination  of  his  status  when  in  the 
United  States;  but  in  sustaining  the  result  thus  reached 
the  Supreme  Court  asserted  that  the  board  is  an  instru- 
ment of  the  executive  power,  and  not  a court;  and  that 
its  decisions  are  merely  those  of  one  branch  of  the  execu- 
tive department,  and  cannot  constitute  res  judicata  in  a 
technical  sense;  and  that  while  final  in  so  far  as  the  act 
provided  they  should  be — that  is,  with  respect  to  the 
courts — they  could  not  be  considered  final  as  against  the 
Secretary  of  Commerce  and  Labor.  But  in  order  to  en- 
able it  to  give  any  decision  at  all  the  board  must  be  con- 
stituted as  provided  by  this  section  and  where  the  case 
of  an  alien  has  been  adversely  passed  on  by  an  immigra- 
tion officer,  the  affirmation  of  the  decision  by  a board  of 
which  he  was  a member  was  illegal,  although  there  was 
no  other  United  States  officer  at  the  port  who  could  have 
been  called  upon  to  act ; and  the  decision  of  the  Secretary 
affirming  such  decision  was  held  to  be  tainted  with  the 
same  disability  and  not  to  be  binding  on  the  courts.73 

The  subject  of  the  finality  of  the  Secretary’s  decision 

71136  Fed.  734. 

72Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029. 

73United  States  v.  Redfern,  180  Fed.  500. 


294  The  Exclusion  and  Expulsion  of  Aliens. 

as  well  as  that  of  executive  officers  generally  is  elsewhere 
discussed.74 

Appeals. 

Where  the  right  of  appeal  lies  from  the  Board’s  de- 
cision, the  following  rules  of  procedure,  forming  a part 
of  Rule  17,  have  been  adopted  by  the  Department: 

1.  Informing  alien  as  to  right  of  appeal. — Where  an 
appeal  lies  the  alien  shall  be  clearly  informed  of  his  right 
thereto  and  the  fact  that  he  has  been  so  informed  entered 
in  the  minutes. 

2.  Appeals , how  filed. — An  alien  desiring  to  appeal  may 
do  so  individually  or  through  any  society  admitted  to  an 
immigrant  station,  also  any  relative  or  friend,  or  through 
any  person,  including  attorneys  permitted  to  practice  be- 
fore the  immigration  authorities.  Where  a valid  appeal 
has  been  taken,  any  further  appeal  shall  be  disregarded. 
Appeals  purporting  to  be  filed  on  behalf  of  an  alien,  but 
without  his  knowledge  or  consent  previously  obtained, 
may  be  ignored. 

3.  Time  for  filing  appeals. — Appeals  must  be  filed 
promptly.  The  immigration  officer  in  charge  may  refuse 
to  accept  an  appeal  filed  after  the  alien  has  been  removed 
from  an  immigration  station  for  deportation,  provided 
the  alien  had  a reasonable  opportunity  to  appeal  before 
such  removal.  Any  appeal  filed  more  than  forty-eight 
hours  after  the  time  of  exclusion  may  be  rejected  by  the 
immigration  officer  in  charge  in  his  discretion. 


7.  Forwarding  appeal  records. — The  complete  appeal 
record  shall  be  forwarded  promptly  to  the  bureau  with  the 
views  in  writing  of  the  immigration  officer  in  charge. 

Cases  in  which  the  alien  has  no  right  of  appeal  have 
been  considered  in  connection  with  section  10.75 

74Chapter  on  Judicial  Review  of  Administrative  Decisions,  post,  p.  477. 

75 Ante,  p.  237. 


The  Existing  Immigration  Law. 


295 


Sec.  26.  That  any  alien  liable  to  be  excluded  because 
likely  to  become  a public  charge  or  because  of  physical 
disability  other  than  tuberculosis  or  a loathsome  or  dan- 
gerous contagious  disease  may,  if  otherwise  admissible, 
nevertheless  be  admitted  in  the  discretion  of  the  Secretary 
of  Commerce  and  Labor  upon  the  giving  of  a suitable  and 
proper  bond  on  undertaking,  approved  by  said  Secretary 
in  such  amount  and  containing  such  conditions  as  he  may 
prescribe,  to  the  people  of  the  United  States,  holding  the 
United  States  or  any  state,  territory,  county,  municipal- 
ity, or  district  thereof  harmless  against  such  alien  becom- 
ing a public  charge.  The  admission  of  such  alien  shall 
be  a consideration  for  the  giving  of  such  bond  or  under- 
taking. Suit  may  be  brought  thereon  in  the  name  and 
by  the  proper  law  officer  either  of  the  United  States  Gov- 
ernment or  of  any  state,  territory,  district,  county,  or 
municipality  in  which  such  alien  becomes  a public  charge. 

Admission  on  bond.76 

As  the  admission  on  bond  of  aliens  coming  within  the 
class  described  in  this  section  is  left  to  the  discretion  of 
the  Secretary  of  Commerce  and  Labor,  if  he  refuses  to 
exercise  such  discretion  favorably  his  decision  cannot 
be  judicially  questioned,  even  though  his  refusal  may 
not  seem  to  be  based  on  reasons  which  appear  persuasive 
to  a court.77 

Subdivisions  5 and  6 of  Rule  17  contain  the  following 
provisions : 

5.  No  appeal  lies  where  a decision  of  a board  of  special 
inquiry,  based  solely  upon  the  certificate  of  the  examining 
medical  officer,  rejects  an  alien  because  he  is  suffering 
from  some  physical  defect  other  than  tuberculosis  or  a 
loathsome  or  dangerous  contagious  disease.  But  in  such 
a case,  notwithstanding  exclusion,  the  alien  may,  if  other- 
wise admissible,  apply  for  admission  on  bond  (sec.  26). 
In  a case  of  this  character  he  shall,  after  exclusion,  be 
notified  of  his  right  to  apply  for  admission  on  bond  and 

76See  Chapter  on  Deportation  Procedure,  post,  p.  614. 

77United  States  ex  rel.  Chanin  v.  Williams,  177  Fed.  689. 


296  The  Exclusion  and  Expulsion  of  Aliens. 

may  file  his  application  within  the  time  mentioned  in  sub- 
division 3 hereof. 

6.  Where  the  landing  of  an  alien  under  bond  is  author- 
ized the  bond  shall,  unless  different  instructions  are  given, 
be  in  the  sum  of  $500,  and  the  alien  shall  not  be  released 
until  it  has  been  furnished  and  the  immigration  official 
in  charge  has  satisfied  himself  of  the  responsibility  of 
the  sureties.  If  within  a reasonable  time  after  landing 
under  bond  is  authorized  a satisfactory  bond  is  not  fur- 
nished, instructions  shall  be  requested  of  the  bureau. 

Sec.  27.  That  no  suit  or  proceedings  for  a violation  of 
the  provisions  of  this  act  shall  be  settled,  compromised  or 
discontinued  without  the  consent  of  the  court  in  which  it 
is  pending,  entered  of  record,  with  the  reasons  therefor. 

The  purpose  of  this  section  is  obvious.  Evidently  Con- 
gress considered  the  imposition  of  the  penalties  provided 
by  the  immigration  law  to  be  collected  either  civilly  or 
criminally,  as  a very  important  branch  of  the  enforcement 
of  the  law ; hence  this  precaution  to  have  no  compromising 
and  minimizing  of  those  penalties  in  any  instances,  or  for 
any  reasons,  which  would  not  stand  the  scrutiny  of  the 
courts. 

Sec.  28.  That  nothing  contained  in  this  act  shall  be 
construed  to  affect  any  prosecution,  suit,  action  or  pro- 
ceedings brought,  or  any  act,  thing  or  matter,  civil  or 
criminal,  done  or  existing  at  the  time  of  the  taking  effect 
of  this  act;  but  as  to  all  such  prosecutions,  suits,  actions, 
proceedings,  acts,  things  or  matters  the  laws  or  parts  of 
laws  repealed  or  amended  by  this  act  are  hereby  con- 
tinued in  force  and  effect. 

The  corresponding  section  of  the  Act  of  1903  was  con- 
strued not  to  be  limited  in  its  application  to  prosecutions 
or  proceedings  begun  before  the  passage  of  the  act,  but  to 
apply  to  those  thereafter  begun  under  the  Act  of  1875 


The  Existing  Immigration  Law.  297 

based  on  acts  committed  before  its  repeal  or  amendment.78 
This  holding  has  since  been  followed  in  construing  this 
section,  continuing  in  force  the  Act  of  1903  as  to  the  ex- 
clusion of  alien  prostitutes,  and  as  saving  the  Govern- 
ment’s right  to  deport  a member  of  that  class  who  landed 
in  1906,  though  no  proceeding  was  brought  for  that  pur- 
pose until  1908  ;79  and  likewise  as  applicable  to  prosti- 
tutes residing  in  the  United  States  at  and  prior  to  the 
time  of  its  passage;80  and  to  enure  to  the  benefit  of  con- 
tract laborers  entering  prior  thereto,  while  the  Act  of  1903 
was  in  force,  which  did  not  prohibit  the  members  of  that 
class  from  entering  this  country.81 

Sec.  29.  That  the  circuit  and  district  cotfrts  of  the 
United  States  are  hereby  vested  with  full  and  concurrent 
jurisdiction  of  all  causes,  civil  and  criminal,  arising  under 
any  of  the  provisions  of  this  act. 

This  provision  appears  in  the  Act  of  March  3,  1903, 
and  in  the  case  of  Ex  parte  Crawford82  was  construed  not 
to  affect  the  final  jurisdiction  of  the  Secretary  of  Com- 
merce and  Labor  in  matters  pertaining  to  the  exclusion  of 
aliens  seeking  admission  to  this  country. 

In  section  13  of  the  Act  of  March  3,  1891,  the  clause 
appeared  for  the  first  time  and  was  held  by  the  Supreme 
Court  in  the  case  of  Ekiu  v.  United  States83  to  refer  “to 
causes  of  judicial  cognizance  already  provided  for, 
whether  civil  actions  in  the  nature  of  debt  for  penalties 
under  sections  3 and  4 or  indictment  for  misdemeanors 
under  sections  6,  8 and  10.  Its  intention  was  to  vest  con- 
current jurisdiction  of  such  causes  in  the  circuit  and 
district  courts;  and  it  is  impossible  to  construe  it  as  giv- 

78Lang  v.  United  States,  133  Fed.  201. 

79Ex  parte  Durand,  160  Fed.  558. 

8°Looe  Shee  v.  North,  170  Fed.  566. 

siBotis  v.  Davies,  173  Fed.  996. 

8 2Ex  parte  Crawford,  165  Fed.  830. 

ssEkiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146. 


298  The  Exclusion  and  Expulsion  of  Aliens. 


in g the  courts  jurisdiction  to  determine  matters  which 
the  act  has  expressly  committed  to  the  final  determination 
of  executive  officers.” 

Sec.  30.  That  all  exclusive  privileges  of  exchanging 
money,  transporting  passengers  or  baggage,  or  keeping 
eating  houses,  and  all  other  like  privileges  in  connection 
with  any  United  States  immigrant  stations,  shall  be  dis- 
posed of  after  public  competition,  subject  to  such  condi- 
tions and  limitations  as  the  Commissioner  General  of  Im- 
migration, under  the  direction  or  with  the  approval  of  the 
Secretary  of  Commerce  and  Labor,  may  prescribe:  Pro- 
vided, That  no  intoxicating  liquors  shall  be  sold  in  any 
such  immigrant  station;  that  all  receipts  accruing  from 
the  disposal  of  such  exclusive  privileges  as  herein  pro- 
vided shall  be  paid  into  the  Treasury  of  the  United  States 
to  the  credit  of  the  “immigrant  fund”  provided  for  in  sec- 
tion one  of  this  act. 

The  “immigrant  fund”  mentioned  here  and  elsewhere 
in  the  Act  of  1907  (notably  in  sections  1 and  20),  is  no 
longer  in  existence,  having  been  abolished  by  the  appro- 
priation Act  of  March  4,  1909. 84  From  the  earliest  stages 
of  the  Federal  control  of  immigration  the  idea  seems  to 
have  prevailed  that  the  entry  of  foreigners  into  the  coun- 
try should  not  be  used  as  a means  of  collecting  revenue. 
The  excuse  for  the  head  tax  has  always  been  that  the 
money  so  collected  was  to  constitute  primarily  a fund  for 
the  benefit  of  the  immigrants  themselves.  It  was  only 
incidentally  that  it  was  to  protect  the  country  against  the 
influx  of  undesirable  aliens.  In  the  Head  Money  Cases,85 
considerable  stress  was  laid  upon  the  quasi-philanthropic 
nature  of  the  tax.  But,  with  the  immigrant  fund  abol- 
ished, and  the  joint  enforcement  of  the  immigration  and 
Chinese  exclusion  statutes  conducted  with  an  appropria- 
tion annually  made  which  in  no  way  approaches  the 
amount  of  the  income  accruing  from  the  tax  imposed,  the 

8435  Stat.  at  L.  981. 

85Head  Money  Cases,  112  U.  S.  580,  28  Law  Ed.  798. 


The  Existing  Immigration  Law. 


299 


immigration  law  has  become,  it  must  be  admitted,  a reve- 
nue producing  measure. 

Sec.  31.  That  for  the  preservation  of  the  peace  and  in 
order  that  arrests  may  be  made  for  crimes  under  the  laws 
of  the  states  and  territories  of  the  United  States  where 
the  various  immigrant  stations  are  located,  the  officers 
in  charge  of  such  stations,  as  occasion  may  require,  shall 
admit  therein  the  proper  state  and  municipal  officers 
charged  with  the  enforcement  of  such  laws,  and  for  the 
purpose  of  this  section  the  jurisdiction  of  such  officers 
and  of  the  local  courts  shall  extend  over  such  stations. 

In  section  16  of  the  act  the  scrivener,  in  abundance  of 
caution,  took  care  to  insert  that  the  removal  of  aliens  to 
the  custody  of  immigration  officers  for  the  purpose  of 
passing  upon  their  right  to  enter  this  country  was  not  to 
be  considered  a landing.  In  the  Ju  Toy86  and  Japanese 
Immigrant87  cases,  so  often  cited  in  this  volume,  the  Su- 
preme Court  has  held  that,  for  the  purpose  of  invoking 
certain  constitutional  guarantees,  a foreigner  seeking 
admission  to  this  country  shall  not,  until  he  has  been 
duly  admitted  by  the  proper  authorities,  be  deemed  to  have 
landed  in  the  United  States  in  the  sense  of  having  ac- 
quired the  status  of  one  actually  resident  within  this 
jurisdiction,  and  as  such  in  the  position  of  being  com- 
petent to  invoke  the  protection  of  our  laws  to  the  same 
extent  as  citizens  of  this  country,  or  persons  who  have 
by  law  free  access  to  its  dominions,  or  foreigners  actually 
resident  here.  But  the  fact  that  the  courts  have  so  held 
and  that  the  act  itself  provides  that  for  certain  purposes 
aliens  subject  to  the  jurisdiction  of  immigration  officers 
for  the  purpose  of  examination  are  not  to  be  deemed 
landed  cannot  of  course  be  construed  to  imply  their  im- 
munity from  ordinary  criminal  process.  Indeed,  the  fact 
of  an  alien’s  physical  presence  on  shore,  pending  an  ex- 

seUnited  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 

87Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 


300  The  Exclusion  and  Expulsion  of  Aliens. 

amination  would  be  immaterial  in  considering  the  ques- 
tion of  the  right  of  either  the  Federal  or  state  authorities 
to  preserve  peace  and  order  within  their  respective  juris- 
dictions. Aliens  who  have  not  as  yet  left  the  passenger 
vessel  bringing  them  to  this  country  are,  when  in  our 
ports,  as  much  subject  to  the  local  jurisdiction  as  when 
they  have  been  actually  removed  on  shore  for  the  purpose 
of  examination. 

An  immigration  station  is  not,  because  of  its  being  the 
seat  of  the  official  activity  of  purely  Federal  officers,  a 
Government  reservation,  and  crimes  or  offenses  on  its 
premises  are  necessarily  subject  to  the  local  jurisdiction. 

Sec.  32.  That  the  Commissioner  General  of  Immigra- 
tion under  the  direction  or  with  the  approval  of  the  Sec- 
retary of  Commerce  and  Labor,  shall  prescribe  the  rules 
of  the  entry  and  inspection  of  aliens  along  the  borders  of 
Canada  and  Mexico,  so  as  not  to  unnecessarily  delay,  im- 
pede, or  annoy  passengers  in  ordinary  travel  between  the 
United  States  and  said  countries,  and  shall  have  power  to 
enter  into  contracts  with  transportation  lines  for  the  said 
purpose. 

The  rules  adopted  in  pursuance  of  this  authority  are: 
Rule  12,  based  upon  an  agreement  with  the  Canadian 
transportation  companies,  Rule  13,  and  certain  sections 
of  Rule  1 relating  to  the  inspection  and  collection  of  head 
tax  on  account  of  aliens  entering  the  United  States  from 
or  through  Mexico.  These  rules  provide  as  follows : 

1.  Border  ports  of  entry. — The  following  are  desig- 
nated as  Canadian  border  ports  of  entry  for  aliens : East- 
port,  Calais,  Vanceboro,  Fort  Kent,  Fort  Fairfield,  Van 
Buren,  Houlton,  Madawaska,  and  Lowelltown,  Me. ; 
Beecher  Falls,  N.  H. ; Island  Pond,  Newport,  Richford, 
St.  Albans,  Swanton,  and  Alburg,  Vt. ; Rouses’  Point,  Ma- 
lone, Fort  Covington,  Nyando,  Ogdensburg,  Morristown, 
Waddington,  Clayton,  Cape  Vincent,  Charlotte,  Olcott, 
Lewiston,  Niagara  Falls,  and  Buffalo,  N.  Y. ; Cleveland 


The  Existing  Immigration  Law.  301 

and  Toledo,  Ohio;  Detroit,  St.  Clair,  Port  Huron,  and 
Sault  Ste  Marie,  Mich. ; Chicago,  111. ; Duluth,  Ranier,  In- 
ternational Falls,  Warroad,  Beaudette,  and  Noyes,  Minn. ; 
Hannah,  Pembina,  Neche,  Walhalla,  Portal,  and  St.  John, 
N.  Dak.;  Sweet  Grass  and  Gateway,  Mont.;  Porthill  and 
Eastport,  Idaho,  and  Marcus,  Oroville,  Sumas,  and  Blaine, 
Wash. 

2.  Seaports  of  entry  and  locations  of  boards  of  special 
inquiry. — (a)  The  following  are  designated  as  Canadian 
seaports  of  entry  for  aliens  bound  for  the  United  States: 
Halifax,  Nova  Scotia,  Quebec,  and  Point  Levi,  Quebec; 
St.  John,  New  Brunswick,  and  Vancouver  and  Victoria, 
British  Columbia. 

(b)  Boards  of  special  inquiry  shall  be  located  at  said 
seaports  and  also  at  the  following  places:  Yarmouth, 
Nova  Scotia;  Calais,  and  Houlton,  Me.;  Montreal,  Que* 
bee ; Newport,  Vt. ; Buffalo,  Niagara  Falls,  and  Lewiston, 
N.  Y. ; Cleveland  and  Toledo,  Ohio;  Detroit,  Port  Huron, 
and  Sault  Ste  Marie,  Mich.;  Chicago,  111.;  Duluth  and 
International  Falls,  Minn.;  Winnipeg,  Manitoba;  Portal, 
N.  Dak. ; Sweet  Grass,  Mont. ; Eastport,  Idaho,  and  Mar- 
cus, Sumas,  and  Blaine,  Wash. 

3.  Head  Tax. — (a)  The  masters,  owners,  or  agents  of 
vessels  plying  to  Canadian  ports  shall  pay  to  the  United 
States  Commissioner  of  Immigration  for  Canada  the  sum 
of  $4  on  account  of  each  alien  bound  for  the  United 
States,  with  the  exception  of  such  as  are  excluded  and 
deported. 

(b)  All  aliens  of  the  taxable  class  seeking  to  enter  the 
United  States  from  Canada  or  Newfoundland  shall  be 
denied  examination  under  the  United  States  immigration 
laws  (except  to  a sufficient  extent  to  determine  liability 
for  head  tax)  until  they  present  to  the  examining  officers 
a certificate  from  a duly  appointed  agent  of  the  transpor- 
tation company  bringing  such  aliens  to  the  border,  guar- 
anteeing that  responsibility  for  the  payment  of  head  tax 
on  account  of  such  aliens  will  be  assumed  by  said  trans- 


302  The  Exclusion  and  Expulsion  of  Aliens. 


portation  company,  certificate  guaranteeing  payment  of 
head  tax  being  returnable  to  the  applicant  for  admission 
in  the  event  of  his  exclusion,  such  certificate  before  its  re- 
turn to  such  applicant  to  have  the  word  “Rejected” 
stamped  or  written  in  red  ink  across  Its  face. 

(c)  All  moneys  collected  under  the  provisions  of  this 
rule  shall  be  transmitted  by  the  commissioner  of  immi- 
gration for  Canada  to  an  assistant  treasurer  of  the  United 
States  for  deposit  in  appropriate  manner.  Reports  of 
such  receipts  shall  be  made  monthly  by  the  said  commis- 
sioner on  the  appropriate  form.  The  commissioner  shall 
give  bond  in  the  sum  of  $10,000,  conditioned  for  the  faith- 
ful discharge  of  his  duties  and  the  remittance  of  the  col- 
lections herein  described. 

4.  Manifests. — (a)  The  masters,  owners,  or  agents  of 
vessels  bringing  to  Canadian  ports  aliens  bound  for  the 
United  States  shall  furnish  to  the  United  States  immigra- 
tion officials  in  charge  at  such  ports  complete  manifests 
and  alphabetical  books  of  all  arriving  alien  passengers, 
and  also  complete  manifests  of  all  arriving  alien  passen- 
gers en  route  to  the  United  States,  such  as  are  now  re- 
quired by  law  of  vessels  bringing  aliens  to  United  States 
ports. 

(b)  Such  masters,  owners,  or  agents  shall  also  furnish 
to  the  United  States  commissioner  of  immigration  for 
Canada  manifests  of  all  passengers  not  citizens  of  the 
United  States  leaving  the  United  States  and  proceeding 
by  their  vessels  to  foreign  ports,  as  required  by  law  for 
vessels  departing  from  United  States  ports. 

5.  Medical  examination. — Aliens  coming  to  the  United 
States  from  or  through  Canada  shall  be  examined  for 
mental  and  physical  disabilities  or  afflictions  in  the  man- 
ner prescribed  in  section  17. 

6.  Inspection,  certification,  and  admission. — (a) All 
necessary  facilities,  in  the  way  of  accommodations,  access 
to  the  aliens,  and  the  keeping  of  aliens  apart  from  the 
public  until  after  inspection,  shall  be  afforded  to  the  im- 


The  Existing  Immigration  Law.  303 

migration  officials  of  the  United  States  stationed  at  Ca- 
nadian ports  to  enable  them  to  make  the  inspection  re- 
quired by  law.  The  inspection  conducted  at  the  seaports, 
the  land  border  ports,  or  the  interior  board  of  special  in- 
quiry stations  herein  mentioned  shall  be  similar  to  that 
conducted  at  United  States  ports.  Such  aliens  as  in  the 
opinion  of  the  examining  inspector  are  not  clearly  entitled 
to  admission  shall  be  taken  before  a board  of  special  in- 
quiry. The  decision  of  such  a board  shall  be  final  unless 
reversed  upon  appeal,  as  provided  by  section  25. 

(b)  Aliens  found  admissible  by  the  inspectors  or 
boards  stationed  at  the  seaports  or  by  the  boards  stationed 
at  the  interior  ports  named  in  subdivision  2 hereof  shall 
be  furnished  with  a certificate  of  identity  prepared  on  the 
form  provided  by  the  Bureau,  signed  by  the  United  States 
commissioner  of  immigration  for  Canada,  and  shall  be  ad- 
mitted at  any  one  of  the  ports  of  entry  named  in  subdi- 
vision 1 hereof  without  further  examination,  upon  pre- 
senting and  surrendering  said  certificate  and  being  identi- 
fied as  the  proper  holder  thereof. 

(c)  Any  alien  of  the  taxable  class,  who  shall  apply  for 
admission  at  the  Canadian  border  within  one  year  after 
arriving  at  a Canadian  seaport,  and  not  present  the  cer- 
tificate prescribed  in  the  preceding  paragraph,  shall  be 
returned  by  the  transportation  company  which  brought 
him  to  the  border  to  one  of  the  seaports  of  entry  or  to 
one  of  the  board  of  special  inquiry  stations  named  in  sub- 
division 2 hereof  for  guaranty  of  payment  of  head  tax, 
examination,  and  procurement  of  certificate.  Any  alien, 
whether  taxable  or  not,  who  applies  for  entry  from  Can- 
ada may  be  required  by  an  inspector  having  a doubt  of  his 
admissibility  to  appear  for  examination  before  a board 
located  at  one  of  said  places.  If  any  nontaxable  alien  is 
conveyed  by  a transportation  company  to  a border  point 
where  no  board  of  special  inquiry  is  stationed,  he  shall 
be  returned  and  conveyed  for  examination  to  the  nearest 
point  at  which  such  a board  is  located. 


304  The  Exclusion  and  Expulsion  of  Aliens. 


7.  Deportation. — (a)  All  aliens  bound  for  the  United 
States  finally  rejected  at  Canadian  seaports  shall  be  re- 
turned to  the  country  whence  they  came  by  the  steamship 
line  bringing  them. 

(b)  The  steamship  lines  shall  return  at  their  own  ex- 
pense, from  seaports  of  Canada  or  the  United  States  as 
they  may  elect,  to  the  transoceanic  country  of  embarka- 
tion all  aliens  covered  by  the  provisions  of  paragraph  (c) 
of  subdivision  6 hereof  who  are  shown  to  belong  to  a class 
excluded  by  the  immigration  act,  whenever  in  the  judg- 
ment of  the  Secretary  the  deportation  of  such  aliens  in 
the  manner  described  is  deemed  necessary  to  safeguard 
the  interests  of  the  United  States. 

(c)  All  non  taxable  aliens  who  proceed  to  the  Canadian 
border  without  having  first  been  examined  and  granted 
the  certificate  of  identity  herein  prescribed,  and  who  may 
be  excluded  by  a board  of  special  inquiry  at  a border  sta- 
tion, shall  be  returned  a reasonable  distance  in  Canada 
from  the  boundary  by  the  transportation  company  which 
brought  them  thereto. 

(d)  The  steamship  lines,  parties  to  the  Canadian  agree- 
ment, shall  return,  at  their  own  expense  at  any  time  within 
three  years  from  the  date  of  landing  in  Canada  from  some 
Canadian  port,  or  when  that  is  not  practicable  from 
some  port  of  the  United  States,  such  aliens  as,  having 
been  brought  into  Canada  upon  their  respective  lines  and 
having  subsequently  proceeded  to  the  United  States,  are 
shown  to  belong  to  any  one  of  the  classes  subject  to  ex- 
clusion or  deportation  under  the  immigration  act  when- 
ever deportation  of  such  an  alien  is  ordered  by  the  Secre- 
tary of  Commerce  and  Labor. 

8.  Transits. — (a)  Aliens  of  the  taxable  class  applying 
to  pass  in  transit  through  the  United  States  from  Canada 
shall  furnish  to  immigration  officers  guaranty  of  payment 
of  head  tax  prescribed  in  subdivision  3 hereof.  If  found 
admissible  they  shall  be  given  a certificate  providing  for 
refund  of  head  tax  upon  such  certificate  being  properly 


The  Existing  Immigration  Law.  305 

indorsed  by  the  alien  and  the  purser  of  the  outgoing  trans- 
Atlantic  or  trans-Pacific  steamship,  or  the  conductor  of 
the  train,  upon  which  the  holder  leaves  the  United  States. 

(b)  Refund  of  head  tax  will  be  made  on  aliens  of  the 
taxable  class  arriving  at  seaports  of  Canada  and  desiring 
to  proceed  immediately  in  transit  through  the  United 
States  to  the  transportation  line  responsible  for  its  pay- 
ment, upon  proof  satisfactory  to  the  United  States  com- 
missioner of  immigration  for  Canada  that  such  aliens 
have  passed  by  direct  and  continuous  journey  through 
and  out  of  the  United  States  within  the  time  limit  speci- 
fied in  subdivision  2 of  Rule  1 hereof. 

This  rule  is  based  generally  upon  the  immigration  act, 
and  specifically  upon  section  36  thereof  authorizing  the 
Secretary  to  designate  land  border  ports  of  entry  and  upon 
an  agreement  between  the  various  steamship  and  railroad 
companies  in  Canada  and  the  Commissioner  General,  ne- 
gotiated in  accordance  with  section  32.  The  various  pro- 
visions of  the  law  and  regulations,  in  so  far  as  applicable, 
should  be  enforced  at  the  Canadian  seaports  and  along 
the  Canadian  border.  Any  alien  who  enters  the  United 
States  across  the  Canadian  border  at  any  other  place 
than  those  named  in  subdivision  1 of  this  rule  as  a port  of 
entry  is  subject  to  deportation  under  sections  20,  21,  35 
and  36. 

The  following  rule  has  been  adopted  regarding  inspec- 
tion on  the  Mexican  border. 

1.  Ports  of  entry. — Under  section  36  the  following  are 
named  as  Mexican  border  ports  of  entry  for  aliens: 
Brownsville,  Hidalgo,  Laredo,  Eagle  Pass,  Del  Rio,  and 
El  Paso,  Tex.;  Douglas,  Naco,  and  Nogales,  Ariz. ; and 
Andrade,  Campo,  Calexico,  and  Tia  Juana,  Cal. 

2.  Procedure. — Aliens  applying  for  admission  at  the 
Mexican  border  ports  of  entry  are  subject  to  examination  in 
the  same  manner  and  to  the  same  extent  as  though  arriv- 
ing at  seaports,  report  of  inspection  to  be  made  on  the 
appropriate  forms.  Where  they  cross  the  border  by  bridge 


306  The  Exclusion  and  Expulsion  of  Aliens. 


or  railway  company,  such  company  shall  be  responsible 
for  the  head  tax.  Where  they  cross  the  border  at  a port 
of  entry  otherwise  than  through  the  instrumentality,  of 
one  of  said  companies,  they  shall  as  a preliminary  to  in- 
spection be  questioned  sufficiently  to  determine  with  pre- 
cision whether,  in  the  event  that  full  inspection  should 
show  them  to  be  admissible,  they  are  in  financial  condi- 
tion to  pay  the  $4  head  tax.  If  found  able  to  pay  such 
tax,  the  inspection  may  be  completed;  and  if  found  eli- 
gible, they  shall  pay  the  head  tax  before  being  permitted 
to  enter. 

Sec.  33.  That  for  the  purpose  of  this  act  the  term 
“United  States”  as  used  in  the  title  as  well  as  in  the 
various  sections  of  this  act  shall  be  construed  to  mean  the 
United  States  and  any  waters,  territory  or  other  place 
subject  to  the  jurisdiction  thereof,  except  the  Isthmian 
Canal  Zone:  Provided,  That  if  any  alien  shall  leave 
the  canal  zone  and  attempt  to  enter  any  other  place  under 
the  jurisdiction  of  the  United  States,  nothing  contained 
in  this  act  shall  be  construed  as  permitting  him  to  enter 
under  any  other  conditions  than  those  applicable  to  all 
aliens. 

The  effect  of  this  section  is  that  all  aliens  may,  as  far 
as  the  United  States  is  concerned,  enter  the  Canal  Zone, 
free  from  the  supervision  or  inspection  of  the  immigra- 
tion authorities;  but  it  effectively  bars  those  who  come 
thence  to  the  United  States  from  claiming  like  immunity 
on  the  ground  that  they  have  come  from  one  part  of  the 
United  States  to  another,  either  as  residents  or  in  any 
other  capacity,  and  that  they  are,  therefore,  relieved 
from  the  operation  of  the  statute.  As  far  as  the  provi- 
sions of  this  act  are  operative  it  would  seem  that  the 
Chinese  may  enter  the  Canal  Zone  as  freely  as  any  other 
alien,  unless  they  are  to  be  considered  as  excluded  under 
the  Chinese  exclusion  acts. 


The  Existing  Immigration  Law. 


307 


Sec.  34.  That  the  Commissioner  General  of  Immigra- 
tion, with  the  approval  of  the  Secretary  of  Commerce  and 
Labor,  may  appoint  a commissioner  of  immigration  to 
discharge  at  New  Orleans,  Louisiana,  the  duties  now  re- 
quired of  other  commissioners  of  immigration  at  their 
respective  posts. 

Sec.  35.  That  the  deportation  of  aliens  arrested  within 
the  United  States  after  entry  and  found  to  be  illegally 
therein,  provided  for  in  this  act,  shall  be  to  the  trans- 
Atlantic  or  trans-Pacific  ports  from  which  said  aliens 
embarked  for  the  United  States;  or,  if  such  embarkation 
was  for  foreign  contiguous  territory,  to  the  foreign  port 
at  which  said  aliens  embarked  for  such  territory. 

Sec.  36.  That  all  aliens  who  shall  enter  the  United 
States  except  at  the  seaports  thereof,  or  at  such  place  or 
places  as  the  Secretary  of  Commerce  and  Labor  may  from 
time  to  time  designate,  shall  be  adjudged  to  have  entered 
the  country  unlawfully  and  shall  be  deported  as  provided 
by  sections  twenty  and  twenty-one  of  this  act:  Provided , 
That  nothing  contained  in  this  section  shall  affect  the 
power  conferred  by  section  thirty-two  of  this  act  upon 
the  Commissioner  General  of  Immigration  to  prescribe 
rules  for  the  entry  and  inspection  of  aliens  along  the 
borders  of  Canada  and  Mexico. 

The  power  of  the  Secretary  to  deport  aliens  en- 
tering the  United  States  at  any  place  other  than 
the  seaports  thereof  or  other  than  such  place  or 
places  as  he  may  designate  has  already  been  dis- 
cussed in  connection  with  the  preceding  sections  of  this 
act.88  The  purpose  of  this  section  is  to  make  it  obligatory 
upon  aliens  seeking  admission  from  foreign  contiguous 
territory  to  enter  only  at  places  or  ports  where  inspection 
officers  are  located.  A failure  to  do  this  renders  the  of- 
fender liable  to  deportation89  as  having  evaded  the  immi- 
gration law.90  The  mere  fact  of  crossing  the  border  has 

88 Ante,  pp.  261,  265  et  seq. 

89 Ex  parte  Li  Dick,  176  Fed.  998. 

90 Ex  parte  Hamaguchi,  161  Fed.  185. 


308  The  Exclusion  and  Expulsion  of  Aliens. 


been  held,  however,  not  to  constitute  an  entry91  and  not 
to  give  the  immigration  authorities  the  right  to  deport 
pro  tanto  but  merely  to  turn  the  alien  back.  If,  however, 
he  cannot  be  turned  back  in  the  sense  of  being  actually 
conducted  back  into  the  jurisdiction  of  the  contiguous 
state  without  violating  the  laws  of  that  state,  it  seems 
that  he  can  either  be  released  and  immediately  rearrested 
for  being  in  the  United  States  in  violation  of  the  Chinese 
exclusion  laws — if  a Chinaman92  or  at  once  held  for  depor- 
tation under  the  immigration  act.93 

Entry  by  an  alien  by  virtue  of  false  representations 
made  to  the  examining  inspector  results  in  the  entry 
being  illegal  under  this  section  when  obtained  by  means 
of  naturalization  papers  granted  another  and  entering 
under  the  assumed  name  of  that  other.94 

It  is  obviously  quite  as  important  that  aliens  entering 
across  the  land  boundaries  shall  be  inspected  for  moral, 
mental  and  physical  deficiencies  as  in  the  case  of  those 
landing  at  the  seaports.  The  dignity  and  integrity  of  the 
law  must  be  upheld  in  that  regard ; to  compel  a thorough 
respect  for  it  is  the  purpose  of  this  section. 

Sec.  37.  That  whenever  an  alien  shall  have  taken  up 
his  permanent  residence  in  this  country  and  shall  have 
filed  his  declaration  of  intention  to  become  a citizen,  and 
thereafter  shall  send  for  his  wife,  or  minor  children  to 
join  him,  if  said  wife  or  any  of  said  children  shall  be 
found  to  be  affected  with  any  contagious  disorder,  such 
wife  or  children  shall  be  held,  under  such  regulations  as 
the  Secretary  of  Commerce  and  Labor  shall  prescribe, 

si  Ex  parte  Chow  Chok,  161  Fed.  629,  aff.  same  v.  United  States,  163  Fed. 
1021. 

szUnited  States  v.  Yuen  Pak  Sune,  183  Fed.  260. 

93United  States  v.  Wong  You  et  al.,  223  U.  S.  67,  56  Law  Ed. . 

94Williams  v.  United  States,  186  Fed.  479;  but  see  Lewis  v.  Frick,  189 
Fed.  146,  reversed  in  Frick  v.  Lewis,  195  Fed.  693.  But  entering  under  an 
assumed  name  or  assumed  relationship  to  a third  party  does  not  justify 
exclusion  on  the  ground  that  the  entry  has  been  without  inspection  when  the 
false  statement  has  no  bearing  on  the  right  of  the  applicant  to  admission. 
United  States  v.  Martin,  193  Fed.  795. 


The  Existing  Immigration  Law.  309 

until  it  shall  be  determined  whether  the  disorder  will  be 
easily  curable,  or  whether  they  can  be  permitted  to  land 
without  danger  to  other  persons;  and  they  shall  not  be 
either  admitted  or  deported  until  such  facts  have  been 
ascertained;  and  if  it  shall  be  determined  that  the  dis- 
order is  easily  curable  or  that  they  can  be  permitted  to 
land  without  danger  to  other  persons,  they  shall,  if 
otherwise  admissible,  thereupon  be  admitted. 

Under  the  Act  of  1903  it  was  provided  that  in  the  case  of 
the  wife  or  minor  children  of  aliens  who  had  filed  their 
declaration  of  intention  to  become  citizens  and  had  there- 
after sent  for  such  wife  or  minor  child  to  come  to  the 
United  States,  as  a condition  precedent  to  their  tem- 
porary admission  under  the  surveillance  and  care  of  the 
immigration  officer,  proof  should  be  submitted  to  show 
that  the  illness  was  contracted  on  board  the  ship  in  which 
they  came,  and  that  this  fact  should  be  certified  by  the 
examining  surgeon  at  the  port  of  arrival.  This  condition 
does  not  appear  in  the  present  section. 

The  wife  and  children  of  such  alien  declarants  are  spe- 
cially favored  by  this  section  in  that  it  provides  that  they 
shall  be  held  if  affected  with  any  contagious  disorder. 
This  comprehensive  term  must  be  taken  to  include  tuber- 
culosis or  any  other  loathsome  or  dangerous  disease. 
Under  the  law  the  parties  are  to  be  held  until  it  can  be 
ascertained  whether  the  disorder  is  easily  curable  or  that 
they  can  be  landed  without  danger  to  other  persons. 
By  the  terms  of  section  2 if  the  ground  of  exclusion  is 
disease,  it  must  be  either  tuberculosis  or  some  sickness 
of  a loathsome  or  dangerous  contagious  character;  other 
diseases,  even  though  contagious,  do  not  per  se  subject 
aliens  in  general  to  exclusion.  The  holding  of  such  wife 
or  children  is  preparatory  to  their  admission  or  deporta- 
tion; but  deportation  could  legally  follow  only  in  case 
the  disease  were  tuberculosis  or  of  a loathsome  or  danger- 
ous contagious  nature.  There  is  nothing  in  the  act  to 
prevent  the  Secretary  from  holding  for  cure  any  alien 


310  The  Exclusion  and  Expulsion  of  Aliens. 


afflicted  with  diseases  which  are  not  of  the  above-men- 
tioned classes.  But  this  section  allows  even  more  than 
this,  for  not  only  does  it  give  the  diseased  wife  or  chil- 
dren of  the  alien  declarant  the  advantage  of  not  being  im- 
mediately deported,  but  also  of  being  admitted,  even  if 
suffering  from  such  disease  or  diseases,  should  it  be  de- 
termined that  it  or  they  are  easily  curable,  or  that  such 
wife  or  children  can  be  admitted  to  land  without  dangei 
to  other  persons.  It  would  seem  to  follow  that  such  alien 
wives  or  children  can  claim  as  of  right  the  privilege  of 
this  preliminary  admission  which  other  aliens  may  only 
request  as  a privilege  to  be  granted  or  refused  in  the  dis- 
cretion of  the  Secretary  of  Commerce  and  Labor.95 

Curiously  enough  the  act  contains  no  similar  provision 
for  the  wives  and  minor  children  of  aliens  who  have 
become  naturalized  citizens  of  the  United  States,  although 
prior  to  the  passage  of  this  act  the  Supreme  Court  denied 
relief  in  habeas  corpus  to  an  alien  minor  child  of  a nat- 
uralized alien  afflicted  with  trachoma  who  had  been  re- 
fused admission  to  the  United  States  by  a board  of  spe- 
cial inquiry.96  There  the  court  had  occasion  to  refer  to 
the  corresponding  section  of  the  Act  of  1903,  containing 
much  the  same  provisions  as  to  alien  wives  and  minor 
children  in  similar  circumstances,  and  to  point  out  that 
the  children,  alien  born,  of  naturalized  citizens  of  the 
United  States,  were,  if  not  having  dwelt  in  this  country, 
not  so  favorably  situated  with  regard  to  the  opportunities 
of  entering,  as  the  children  of  aliens  who  had  done  no  more 
than  to  declare  their  intention. 

It  may  be  added  in  this  connection  that  if  the  wife  of 
the  naturalized  citizen  were  seeking  admission  to  the 
United  States  diseased  or  otherwise,  she  would,  if  she 
herself  might  be  lawfully  naturalized,  be  seeking  admis- 

ssSee  section  19. 

06Zartarian  v.  Billings,  204  U.  S.  170,  51  Law  Ed.  428. 


The  Existing  Immigration  Law.  311 

sion  as  a citizen  of  this  country97  and  not  as  an  alien, 
and,  therefore,  would  not  come  within  the  prohibition  of 
the  act.  A child  born  outside  of  the  United  States,  how- 
ever, and  not  having  ever  dwelt  in  this  country  could  not 
claim  the  right  to  enter  based  on  the  naturalization  of 
the  father  unless  the  father  had  been  naturalized  prior 
to  the  birth  of  the  child.98 

The  following  rule  (19)  touching  this  point  has  been 
adopted  by  the  department: 

1.  Staying  deportation  of  wives  and  children  of  de- 
clarants.— If  an  alien  found  on  arrival  to  be  afflicted  with 
tuberculosis  or  a loathsome  or  dangerous  contagious  dis- 
ease is  the  wife  or  minor  child  of  a person  shown  to  have 
declared  his  intention,  or  the  minor  child  born  abroad 
prior  to  the  naturalization  of  a person  shown  to  be  a 
naturalized  citizen,  such  alien  shall  be  held  until  it  is 
ascertained  whether  the  disorder  will  be  easily  curable, 
or  whether  he  can  be  permitted  to  land  without  danger 
to  others.  The  law  does  not  direct  that  any  other  aliens 
so  afflicted  shall  be  held.  Deportation  shall  occur 
promptly  with  respect  to  such  wives  and  minor  children 
if  and  when  it  is  ascertained  that  the  disorder  is  not  easily 
curable  or  that  the  alien  can  not  be  landed  without  danger 
to  others,  and  with  respect  to  all  others  if  and  when  it  is 
ascertained  that  the  alien  is  diseased,  unless,  in  behalf 
of  either,  application  for  treatment  is  made  promptly  in 
accordance  with  the  terms  of  the  next  subdivision. 

Sec.  38.  That  no  person  who  disbelieves  in  or  who  is  op- 
posed to  all  organized  government,  or  who  is  a member  of 
or  affiliated  with  any  organization  entertaining  and  teach- 
ing such  disbelief  in  or  opposition  to  all  organized  govern- 
ment, or  who  advocates  or  teaches  the  duty,  necessity,  or 
propriety  of  the  unlawful  assaulting  or  killing  of  any 
officer  or  officers,  either  of  specific  individuals  or  of  offi- 

97Fed.  Stat.  Annotated,  1994.  But  see  this  subject  as  discussed  in  th<» 
Chapter  on  Status,  post , p.  379. 

98Fed.  Stat.  Annotated  Sec.  1993. 


312  The  Exclusion  and  Expulsion  of  Aliens. 

cers  generally,  of  the  Government  of  the  United  States 
or  of  any  other  organized  government,  because  of  his  or 
their  official  character,  shall  be  permitted  to  enter  the 
United  States  or  any  territory  or  place  subject  to  the 
jurisdiction  thereof.  This  section  shall  be  enforced  by 
the  Secretary  of  Commerce  and  Labor  under  such  rules 
and  regulations  as  he  shall  prescribe.  That  any  person 
who  knowingly  aids  or  assists  any  such  person  to  enter 
the  United  States  or  any  territory  or  place  subject  to  the 
jurisdiction  thereof,  or  who  connives  or  conspires  with 
any  person  or  persons  to  allow,  procure,  or  permit  any 
such  person  to  enter  therein,  except  pursuant  to  such 
rules  and  regulations  made  by  the  Secretary  of  Commerce 
and  Labor  shall  be  fined  not  more  than  five  thousand  dol- 
lars, or  imprisoned  for  not  more  than  five  years,  or  both. 

The  question  of  the  admissibility  of  alien  anarchists 
has  been  discussed  in  connection  with  section  2 of  this 
act."  This  section,  as  section  38  of  the  Act  of  1903  was 
held  constitutional,  although  attacked  on  the  ground  of 
being  in  contravention  of  the  1st,  5th  and  6th  articles  of 
the  Constitution,  of  Par.  1 of  Article  III  thereof,  and 
of  the  first  amendment,  prohibiting  the  passage  of  any 
law  respecting  the  establishment  of  religion  or  prohibiting 
the  free  exercise  thereof;  or  abridging  the  freedom  of 
speech  or  of  the  press,  or  the  right  of  the  people  peaceably 
to  assemble  and  to  petition  the  Government  for  the  re- 
dress of  grievances.100  Aside  from  the  fact  that  the  evi- 
dence adduced  showed  that  the  applicant  considered  and 
called  himself  an  anarchist  and  proposed  to  address  the 
working  men  of  the  country  advocating  a general  strike, 
thus  giving  rise  to  the  justifiable  inference  that  he  con- 
templated bringing  about  an  absence  of  government  by 
the  use  of  force,  the  court  held  that  even  if  the  word 
“anarchist”  was  to  be  deemed  to  include  aliens  whose 

anarchistic  views  are  professed  as  those  of  political  phil- 

\ 

99 Ante,  p.  180. 

looUnited  States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law  Ed. 
979. 


The  Existing  Immigration  Law. 


313 


osophers  innocent  of  evil  intent,  it  would  follow  that  Con- 
gress might  well  consider  the  public  presentation  of  the 
views  of  such  persons  as  dangerous  to  the  public  weal  and 
those  exploiting  them  undesirable  additions  to  the  popula- 
tion of  the  United  States;  and  held  that  “in  the  light  of 
previous  decisions  the  act,  even  in  this  aspect,  would  not 
be  unconstitutional,  as  applicable  to  any  alien  who  is 
opposed  to  all  organized  government.” 

Since  alien  anarchists  are  excluded  under  section  2 of 
the  Act  of  1907,  the  act  of  landing  or  attempting  to  land 
them  merely  as  aliens  and  irrespective  of  their  member- 
ship in  an  unusually  objectionable  class  is  specifically 
prohibited  and  penalized  by  section  8 thereof.  The  es- 
sence of  the  offense  under  section  8 is  the  landing  or  the 
attempt  to  land  any  alien  in  such  a way  that  he  may  es- 
cape examination  by  the  authorities.  The  fact  that  among 
a number  of  aliens  unlawfully  landed  or  attempted  to  be 
landed,  and  who  have  not  been  duly  admitted  by  an  immi- 
grant inspector,  there  may  chance  to  be  included  one  or 
more  anarchists  should  not  render  the  offender  subject 
to  the  penalties  of  this  section  in  the  absence  of  know- 
ledge on  his  part  of  the  anarchistic  tendencies  of  the 
alien  whom  he  has  thus  landed  or  attempted  to  land. 
Guilty  knowledge  is  made  of  the  essence  of  the  offense 
and  the  courts,  in  construing  the  Chinese  exclusion  acts, 
have  consistently  held  that  the  fact  of  such  guilty  know- 
ledge must  be  alleged  in  the  indictment. 

By  the  language  of  this  section  it  is  clear  that  the  term 
“knowingly”  is  used  with  reference  to  the  fact  that  the 
alien  landed  or  sought  to  be  landed  is  an  anarchist,  and 
of  a class  whose  presence  is  prohibited  on  account  of  the 
exceptional  menace  which  it  constitutes  or  may  constitute 
to  the  lives  and  safety  of  the  members  of  the  community; 
hence  the  increase  in  penalty  both  as  to  fine  and  imprison- 
ment over  that  provided  by  section  8.  The  act  of  conniv- 
ing or  conspiring  to  allow,  procure  or  permit  such  person 
to  enter  except  pursuant  to  the  rules  and  regulations 


314  The  Exclusion  and  Expulsion  of  Aliens. 

made  by  the  Secretary  of  Commerce  and  Labor  is  penal- 
ized to  the  same  extent  as  aiding  or  assisting  such  en- 
trance in  defiance  of  such  rules  and  regulations.  The  act 
of  conniving  and  conspiring  to  violate  the  immigration 
law  renders  the  person  found  guilty  thereof  liable  not 
only  to  the  penalties  imposed  by  this  act  but  to  those  im- 
posed for  the  crime  of  conspiracy  as  defined  therein  under 
section  5440  necessarily  includes  imprisonment  and  is, 
may  be  laid  under  either  section  and  the  penalty  imposed 
accordingly.  In  a case  arising  under  the  act,  the  penalty 
is  a fine  or  imprisonment;  under  section  5440  fine  and  im- 
prisonment; but  the  fact  that  the  penalty  imposed  by 
section  5440  of  the  Revised  Statutes.1  The  indictment 
therefore,  the  more  severe,  offers  no  valid  reason  against 
proceeding  against  the  offender  under  the  Revised  Stat- 
utes.2 

It  may  be  added  that  the  act  provides  that  “this  section 
shall  be  enforced  by  the  Secretary  of  Commerce  and  Labor 
under  such  rules  and  regulations  as  he  may  prescribe,” 
and  that  any  person  is  prohibited  from  aiding  or  assisting 
the  entrance  or  conniving  or  conspiring  to  allow,  procure 
or  permit  such  entrance  “except  pursuant  to  such  rules 
and  regulations  made  by  the  Secretary  of  Commerce  and 
Labor.”  In  view  of  this  wording  the  mere  absence  of 
such  rules  and  regulations  would  not  seem  to  constitute  a 
defense  to  a charge  based  on  the  acts  performance  of 
which  is  prohibited  in  this  section. 

Sec.  39.  That  a commission  is  hereby  created,  consist- 
ing of  three  Senators,  to  be  appointed  by  the  President  of 
the  Senate,  and  three  members  of  the  House  of  Represen- 
tatives, to  be  appointed  by  the  Speaker  of  the  House  of 
Representatives,  and  three  persons  to  be  appointed  by 
the  President  of  the  United  States.  Said  commission  shall 
make  full  inquiry,  examination,  and  investigation  by  sub- 
committee or  otherwise  into  the  subject  of  immigration 

iSee  United  States  v.  Stevenson  et  al.  215  U.  S.  200,  54  Law  Ed.  157. 

2/6td. 


The  Existing  Immigration  Law. 


315 


For  the  purpose  of  said  inquiry,  examination,  and  inves- 
tigation, said  commission  is  authorized  to  send  for  per- 
sons and  papers,  make  all  necessary  travel,  either  in  the 
United  States  or  any  foreign  country,  and,  through  the 
chairman  of  the  commission  or  any  member  thereof  to 
administer  oaths  and  to  examine  witnesses  and  papers  re- 
specting all  matters  pertaining  to  the  subject,  and  to  em- 
ploy necessary  clerical  and  other  assistance.  Said  com- 
mission shall  report  to  the  Congress  the  conclusions 
reached  by  it  and  make  such  recommendations  as  in  its 
judgment  may  seem  proper.  Such  sums  of  money  as  may 
be  necessary  for  the  said  inquiry,  examination,  and  in- 
vestigation are  hereby  appropriated  and  authorized  to  be 
paid  out  of  the  “immigrant  fund”  on  the  certificate  of  the 
chairman  of  said  commission,  including  all  expenses  of 
the  commissioners  and  a reasonable  compensation,  to  be 
fixed  by  the  President  of  the  United  States,  for  those 
members  of  the  commission  who  are  not  members  of  Con- 
gress; and  the  President  of  the  United  States  is  also  au- 
thorized, in  the  name  of  the  Government  of  the  United 
States,  to  call,  in  his  discretion,  an  international  confer- 
ence, to  assemble  at  such  point  as  may  be  agreed  upon,  or 
to  send  special  commissioners  to  any  foreign  country,  for 
the  purpose  of  regulating  by  international  agreement, 
subject  to  the  advice  and  consent  of  the  Senate  of  the 
United  States,  the  immigration  of  aliens  to  the  United 
States;  of  providing  for  the  mental,  moral  and  physical 
examination  of  such  aliens  by  American  consuls  or  other 
officers  of  the  United  States  Government  at  the  ports  of 
embarkation,  or  elsewhere;  of  securing  the  assistance  of 
foreign  governments  in  their  own  territories  to  prevent  the 
evasion  of  the  laws  of  the  United  States  governing  immi- 
gration to  the  United  States;  of  entering  into  such  inter- 
national agreements  as  may  be  proper  to  prevent  the  im- 
migration of  aliens  who,  under  the  laws  of  the  United 
States,  are  or  may  be  excluded  from  entering  the  United 
States,  and  of  regulating  any  matters  pertaining  to  such 
immigration. 

Under  the  provisions  of  this  section  a commission  was 
appointed  in  the  spring  of  1907  which  recently  completed 
an  exhaustive  study  of  the  “immigration  problem.”  Its 
report,  comprising  some  forty  volumes  of  information, 


316  The  Exclusion  and  Expulsion  of  Aliens. 


gathered  from  all  over  the  United  States  and  from  many 
foreign  countries,  is  about  to  be  issued.  So  far  its  labors 
have  not  resulted  in  any  new  legislation,  except  the 
amendatory  Act  of  March  26,  1910,  relating  to  sexually 
immoral  aliens,  to  which  extended  reference  has  been 
made3  in  the  discussion  of  section  3.  Several  bills  have 
been  introduced,  however,  as  the  result  of  the  commis- 
sion’s researches,  and  additional  and  more  drastic  legisla- 
tion seems  to  be  assured. 

The  President  has,  as  yet,  not  seen  fit  to  exercise  the 
discretion  conferred  on  him  by  this  section  to  call  an 
“international  conference,”  or  to  send  commissions  to  for- 
eign countries  in  an  effort  to  control  immigration  by  in- 
ternational treaties  or  arrangements.  It  may  be  seriously 
doubted  whether  the  immigration  problem  of  the  United 
States  is  susceptible  of  settlement  by  any  means  other 
than  such  municipal  legislation  as  Congress  may  from 
time  to  time  adopt;  for  there  is  little  community  of  inter- 
est between  the  United  States  and  the  countries  whence 
the  aliens  come  as  far  as  concerns  the  general  question  of 
restriction  of  immigration  to  the  shores  of  this  country. 
Doubtless  the  latter  feel  that  so  far  as  the  welfare  or  fair 
treatment  of  their  nationals  may  be  involved,  such  matters 
should  properly  be  left  to  the  care  of  that  government  the 
benefits  of  whose  laws  and  institutions  they  have  seen  fit 
to  invoke  in  preference  to  their  own. 

Sec.  40.  Authority  is  hereby  given  the  Commissioner 
General  of  Immigration  to  establish,  under  the  direction 
and  control  of  the  Secretary  of  Commerce  and  Labor,  a 
division  of  information  in  the  Bureau  of  Immigration  and 
Naturalization ; and  the  Secretary  of  Commerce  and 
Labor  shall  provide  such  clerical  assistance  as  may  be 
necessary.  It  shall  be  the  duty  of  said  division  to  pro- 
mote a beneficial  distribution  of  aliens  admitted  into  the 
United  States  among  the  several  states  and  territories 
desiring  immigration.  Correspondence  shall  be  had  with 

sAnte,  p.  203. 


The  Existing  Immigration  Law. 


317 


the  proper  officials  of  the  states  and  territories,  and  said 
division  shall  gather  from  all  available  sources  useful  in- 
formation regarding  the  resources,  products,  and  physical 
characteristics  of  each  state  and  territory,  and  shall  pub- 
lish such  information  in  different  languages  and  distribute 
the  publications  among  all  admitted  aliens  who  may  ask 
for  such  information  at  the  immigrant  stations  of  the 
United  States,  and  to  such  other  persons  who  may  desire 
the  same.  When  any  state  or  territory  appoints  and 
maintains  an  agent  or  agents  to  represent  it  at  any  of  the 
immigrant  stations  of  the  United  States,  such  agents 
shall,  under  regulations  prescribed  by  the  Commissioner 
General,  subject  to  the  approval  of  the  Secretary  of  Com- 
merce and  Labor,  have  access  tp  aliens  who  have  been  ad- 
mitted to  the  United  States  for  the  purpose  of  presenting 
either  orally  or  in  writing,  the  special  inducements  of- 
fered by  such  states  oT  territories  to  aliens  to  settle 
therein.  While  on  duty  at  any  immigrant  station  such 
agents  shall  be  subject  to  all  the  regulations  prescribed 
by  the  Commissioner  General  of  Immigration  who,  with 
the  approval  of  the  Secretary  of  Commerce  and  Labor, 
may,  for  the  violation  of  any  such  regulation,  deny  to  the 
agent  guilty  of  such  violation  any  of  the  privileges  herein 
granted. 

» 

The  object  of  this  section  will  be  noted,  is  “to  promote  a 
beneficial  distribution  of  aliens  admitted  into  the  United 
States  among  the  several  states  and  territories  desiring 
immigration.”  The  manner  in  which  such  distribution 
is  to  be  attempted,  however,  seems,  so  far  as  its  specifica- 
tion is  attempted,  to  be  confined  largely  to  furnishing 
oral,  written,  or  printed  information  to  admitted  aliens, 
and  the  division  established  in  the  Bureau  of  Immigration 
and  Naturalization  for  this  purpose  is  called  the  Division 
of  Information.  In  a sense  this  section  is  related  to  sec- 
tion 6, 4 for  it  is  based  on  a recognition  of  the  fact  that 
some  of  the  states  and  territories  of  the  United  States 
are  still  bidding  for  immigrants  to  settle  within  their 
limits,  especially  for  the  purpose  of  taking  up  lands 

* Ante,  p.  214. 


318  The  Exclusion  and  Expulsion  of  Aliens. 

there.  Sections  6 and  40  constitute,  therefore,  a curious 
anomaly  in  the  law,  the  general  spirit  of  which  is  diamet- 
rically opposed  to  artificial  or  stimulated  immigration, 
whereas  the  provisions  of  these  particular  sections  tend 
to  encourage  if  not  to  assist  the  states  or  territories  to 
increase  the  influx  of  foreigners  into  their  respective 
jurisdictions. 

Sec.  41.  That  nothing  in  this  act  shall  be  construed  to 
apply  to  accredited  officials  of  foreign  governments  nor 
to  their  suites,  families,  or  guests. 

This  provision  was  not  contained  in  the  Act  of  1903. 
In  an  opinion  of  the  Attorney  General5  it  was  maintained 
that,  inasmuch  as  Congress  had  failed  to  explicitly  except 
diplomatic  officers  and  their  suites  from  the  operation  of 
that  Act,  the  latter  must  be  deemed  to  be  subject  to  the 
head  tax  described  in  section  1 thereof.  It  is  only  fair  to 
Congress  to  suppose  that  at  the  time  the  Act  of  1903  was 
passed  it  had  no  intention  of  interfering  with  the  immuni- 
ties and  privileges  of  diplomatic  officers  accredited  to  the 
United  States  by  subjecting  them  to  the  payment  of  the 
personal  head  tax.  Under  the  present  section,  however, 
it  is  clear  that  the  question  cannot  arise.* 

Sec.  42.  It  shall  not  be  lawful  for  the  master  of  a steam- 
ship or  other  vessel  whereon  immigrant  passengers,  or 
passengers  other  than  cabin  passengers,  have  been  taken 
at  any  port  or  place  in  a foreign  country  or  dominion 
(ports  and  places  in  foreign  territory  contiguous  to  the 
United  States  excepted)  to  bring  such  vessel  and  pas- 
sengers to  any  port  or  place  in  the  United  States  unless 
the  compartments,  spaces,  and  accommodations  herein- 
after mentioned  have  been  provided,  allotted,  maintained, 
and  used  for  and  by  such  passengers  during  the  entire 
voyage;  that  is  to  say,  in  a steamship,  the  compartments 
or  spaces,  unobstructed  by  cargo,  stores,  or  goods,  shall 
be  of  sufficient  dimensions  to  allow  for  each  and  every 
passenger  carried  or  brought  therein  eighteen  clear  super- 
ficial feet  of  deck  allotted  to  his  or  her  use,  if  the  compart- 

525  Opin.  Atty.  Gen.,  370,  1905. 


The  Existing  Immigration  Law. 


319 


ment  or  space  is  located  on  the  main  deck  or  on  the  first 
deck  next  below  the  main  deck  of  the  vessel,  and  twenty 
clear  superficial  feet  of  deck  allotted  to  his  or  her  use 
for  each  passenger  carried  or  brought  therein  if  the  com- 
partment or  space  is  located  on  the  second  deck  below  the 
main  deck  of  the  vessel:  Provided , That  if  the  height 
between  the  lower  passenger  deck  and  the  deck  immedi- 
ately above  it  is  less  than  seven  feet,  or  if  the  apertures 
(exclusive  of  the  side  scuttles)  through  which  light  and 
air  are  admitted  together  to  the  lower  passenger  deck  are 
less  in  size  than  in  the  proportion  of  three  square  feet  to 
every  one  hundred  superficial  feet  of  that  deck,  the  ship 
shall  not  carry  a greater  number  of  passengers  on  that 
deck  than  in  the  proportion  of  one  passenger  to  every 
thirty  clear  superficial  feet  thereof.  It  shall  not  be  lawful 
to  carry  or  bring  passengers  on  any  deck  other  than  the 
decks  above  mentioned.  And  in  sailing  vessels  such  pas- 
sengers shall  be  carried  or  brought  only  on  the  deck  (not 
being  an  orlop  deck)  that  is  next  below  the  main  deck  of 
the  vessel,  or  in  a poop  or  deck  house  constructed  on  the 
main  deck;  and  the  compartment  or  space,  unobstructed 
by  cargo,  stores,  or  goods,  shall  be  of  sufficient  dimensions 
to  allow  one  hundred  and  ten  cubic  feet  for  each  and  every 
passenger  brought  therein.  And  such  passenger  shall  not 
be  carried  or  brought  in  any  between  decks,  nor  in  any 
compartment,  space,  poop,  or  deck  house,  the  height  of 
which  from  deck  to  deck  is  less  than  six  feet.  In  com- 
puting the  number  of  such  passengers  carried  or  brought 
in  any  vessel,  children  under  one  year  of  age  shall  not  be 
included,  and  two  children  between  one  and  eight  years 
of  age  shall  be  counted  as  one  passenger;  and  any  person 
brought  in  any  such  vessel  who  shall  have  been,  during 
the  voyage,  taken  from  any  other  vessel  wrecked  or  in 
distress  on  the  high  seas,  or  have  been  picked  up  at  sea 
from  any  boat,  raft,  or  otherwise,  sTiall  not  be  included 
in  such  computation.  The  master  of  a vessel  coming  to  a 
port  or  place  in  the  United  States  in  violation  of  either 
of  the  provisions  of  this  section  shall  be  deemed  guilty  of 
a misdemeanor;  and  if  the  number  of  passengers  other 
than  cabin  passengers  carried  or  brought  in  the  vessel,  or 
in  any  compartment,  space,  poop,  or  deck  house  thereof, 
is  greater  than  the  number  allowed  to  be  carried  or 
brought  therein,  respectively,  as  hereinbefore  prescribed, 


320  The  Exclusion  and  Expulsion  of  Aliens. 


the  said  master  shall  be  fined  fifty  dollars  for  each  and 
every  passenger  in  excess  of  the  proper  number,  and  may 
also  be  imprisoned  not  exceeding  six  months. 

This  section  shall  take  effect  on  January  first,  nineteen 
hundred  and  nine. 

As  this  section  is  no  more  than  an  amendment  to  the 
navigation  laws  it  would  seem  to  require  no  comment  here. 

Sec.  43.  That  the  Act  of  March  third,  nineteen  hundred 
and  three,  being  an  act  to  regulate  the  immigration  of 
aliens  into  the  United  States,  exception  section  thirty-four 
thereof,  and  the  Act  of  March  twenty-second,  nineteen 
hundred  and  four,  being  an  act  to  extend  the  exemption 
from  head  tax  to  citizens  of  New  Foundland  entering 
the  United  States,  and  all  acts  and  parts  of  acts  inconsist- 
ent with  this  act  are  hereby  repealed:  Provided , That 
this  act  shall  not  be  construed  to  repeal,  alter  or  amend 
existing  laws  relating  to  the  immigration  or  exclusion  of 
Chinese  persons  or  persons  of  Chinese  descent,  nor  to 
repeal,  alter,  or  amend  section  six,  chapter  four  hundred 
and  fifty-three,  third  session  Fifty-eighth  Congress,  ap- 
proved February  sixth,  nineteen  hundred  and  five,  or, 
prior  to  January  first,  nineteen  hundred  and  nine,  section 
one  of  the  act  approved  August  second,  eighteen  hundred 
and  eighty-two,  and  entitled  “An  act  to  regulate  the  car- 
riage of  passengers  by  sea.” 

This  section  has  already  been  discussed  in  connection 
with  sections  20  and  21  of  this  act.6 

Sec.  44.  That  this  act  shall  take  effect  and  be  enforced 
from  and  after  July  first,  nineteen  hundred  and  seven: 
Provided , however , That  section  thirty-nine  of  this  act 
and  the  last  proviso  of  section  one  shall  take  effect  upon 
the  passage  of  this  act  and  section  forty- two  on  January 
first,  nineteen  hundred  and  nine. 

Approved,  February  20,  1907. 

c Ante,  p.  274. 


Status. 


321 


CHAPTER  III. 


STATUS. 

I.  In  General. 

II. 

A.  International  Status. 

B.  Personal  or  Individual  Status. 

C.  Preliminary  Status. 

D.  Municipal  Status  (Individual  or  Communicated). 

(I.)  The  Acquisition  and  Loss  of  Municipal  Status . 

1.  Under  the  Chinese  Exclusion  Acts. 

(A.)  Acquisition  (In  General). 

(1.)  Of  Individual  Municipal  Status. 

(2.)  Of  Communicated  Status. 

(B.)  Loss  (In  General). 

(a.)  By  Death. 

(b.)  By  Acts  of  Congress. 

(c.)  By  Act  of  the  Parties. 

(1.)  Loss  of  Individual  Municipal  Status. 

(2.)  Loss  of  Communicated  Status. 

2.  Under  the  Immigration  Laws. 

(A.)  Acquisition  (In  General). 

(B.)  Through  the  Acquisition  of  American  Citi- 
zenship. 

(1.)  By  Naturalization. 

(a.)  Effect  of  Naturalization  of  Father 
on  His  Minor  Children. 

(b.)  Effect  of  Naturalization  of  Hus- 
band on  Wife. 

a.  Residence  of  Wife  in  this  Coun- 

try. 

b.  What  Women  May  Be  Lawfully 

Naturalized. 

c.  When  Purpose  of  Marriage  is  to 

Avoid  Deportation. 

(2.)  By  Birth  in  United  States  Territory, 
(a.)  The  Wong  Kim  Ark  Decision. 

(b.)  Children  of  Aliens  Born 

a.  While  in  Detention  Prior  to  Ad- 

mission. 

b.  Of  Parents  Unlawfully  Residing 

in  United  States. 

III.  The  Status  of  Domiciled  Aliens. 

A.  In  General. 


322 


The  Exclusion  and  Expulsion  of  Aliens. 


B.  Aliens  Who  After  Entering  the  United  States 
(1.)  Fail  to  Acquire  a Domicile. 

(2.)  Renounce  a Domicile  Once  Acquired. 

C.  Aliens  Who  Acquire  a Domicile. 

(1.)  Where  Original  Entry  is  Lawful. 

1.  Where  Alien  Commits  No  Act  Which  Would  Render 

Him  Subject  'to  Expulsion. 

2.  Where  Alien  While  Here  or  Abroad  Commits  Some 

Act  Which  Would  Render  Him  Subject  to  Ex- 
pulsion. 

3.  Voluntarily  Becomes  While  Absent  a Member  of  a 

Class  Excludable  on  Grounds  Other  Than 
Physical  or  Mental  Disability  but  Membership 
in  Which  Would  Not  Render  Him  Subject  to 
Expulsion. 

4.  Who  when  abroad  is  convicted  of  a felony  or  crime 

or  midemeanor  involving  moral  turpitude. 

5.  Where  the  Conditions  Under  Which  He  Entered 

Under  an  Earlier  Act,  and  Which  Involved  No 
Question  of  Mental,  Moral  or  Physical  Dis- 
ability would  have  constituted  a bar  to  his  ad- 
mission had  he  attempted  to  enter  for  the  first 
time  under  the  present  act. 

(2.)  Where  Original  Entry  is  Unlawful 

1.  Where  Alien  Seeks  to  Re-enter  Within  the  Three- 

year  Period. 

2.  When  He  Leaves  Before  the  Three-year  Period 

Has  Run  and  Returns  After  Its  Expiration. 

3.  When  He  Leaves  After  the  Three-year  Period  Has 

Run. 

D.  The  Acquisition  of  Domicile  as  Affected  by  the  Minor- 

ity of  the  Alien. 

IV.  Special  Classes  to  Whom  the  Immigration  Act  Does  Not 
Apply. 

A.  Seamen. 

B.  Stowaways. 

C.  Natives  of  Insular  Possessions. 


Status. 


323 


I.  In  General. 

In  considering  the  question  of  the  acquisition  and  loss 
of  status  by  aliens  who  seek  to  enter  or  remain  in  the 
United  States  under  the  Chinese  exclusion  or  immigration 
acts  the  need  of  a clear  appreciation  of  what  is  meant  by 
the  use  of  the  term  “status”  at  once  becomes  apparent. 
As  the  very  act  of  seeking  admission  into  a foreign  coun- 
try, or  of  tendering  allegiance  to  a new  sovereign  whose 
will  is  expressed  by  laws  differing  often  fundamentally 
from  those  of  the  country  whence  the  alien  comes  involves 
not  only  one  but  several  changes  of  status,  the  rights 
and  obligations  of  the  alien,  differing  as  they  do  with  the 
assumption  of  each  succeeding  condition,  should  be  care- 
fully distinguished. 

The  word  status  is  defined  as  the  standing  or  condition 
of  the  person  (Webster’s  New  International  Dictionary, 
1911).  For  the  sake  of  convenience  and  of  avoiding  con- 
fusion in  the  use  of  so  comprehensive  a term  the  following 
classification  is  adopted. 

(1.)  International  Status,  or  the  rights  and  obligations 
vested  in  and  imposed  upon  foreigners  by  international 
law  when  they  as  aliens  seek  to  enter  or  remain  in  the 
territory  of  a sovereign  state  other  than  their  own. 

(2.)  Personal  or  Individual  Status,  or  the  condition  of 
an  alien  who,  for  purposes  of  expatriation,  leaves  his  na- 
tive land  and  arrives  at  a port  of  the  United  States. 

(3.)  Preliminary  Status,  or  the  condition  of  an  alien 
whose  right  to  enter,  after  arrival  at  a port  of  the  United 
States  for  purposes  of  entry,  has  not  been  passed  upon  by 
the  administrative  officers  but  is  pending  before  such 
officers,  or  whose  right  to  enter  has  been  adversely  passed 
upon  by  those  officers  but  is  pending  before  a judicial 
tribunal. 

(4.)  Municipal  Status,  or  the  condition  of  an  alien  who 
has  been  duly  admitted  in  accordance  with  the  provisions 
of  the  immigration  and  the  exclusion  laws,  or  who,  having 


324  The  Exclusion  and  Expulsion  of  Aliens. 

entered  unlawfully  because  being  excludable  under  the 
former,  has  resided  in  this  country  unmolested  by  the 
immigration  officials  during  the  statutory  period  after 
the  expiration  of  which  he  cannot  be  deported  on  the 
charge  of  unlawful  entry.  Municipal  status  acquired  by 
virtue  of  these  laws  may  be  classified  as  (1)  individual 
and  (2)  communicated  status;  the  first  being  that  ac- 
quired by  an  alien  on  a satisfactory  showing  that  he 
himself  possesses  the  attributes  which  entitle  him  to  ad- 
mission; the  second  expressing  the  condition  of  a for- 
eigner who  of  himself  or  herself  cannot  claim  the  right  to 
enter  or  remain  in  this  country,  but  in  whom,  by  virtue 
of  the  existence  of  such  right  in  another,  the  law  presumes 
the  existence  of  a corresponding  right.  Municipal  status 
as  the  term  is  used  here  may  be  further  classified  as  (3) 
permanent  or  (4)  conditional;  permanent  as  to  those 
aliens  who  after  lawful  entry  or  after  the  expiration  of 
three  years  after  unlawful  entry  do  not  commit  acts  which 
subject  them  to  exclusion  under  the  immigration  laws, 
conditional  as  to  those  who  do  perform  such  acts.  To 
avoid  confusion,  however,  it  is  thought  best  to  consider 
the  municipal  status  acquired  by  aliens  belonging  to 
classes  (1)  and  (2)  as  constituting  a standing  perma- 
nent under  the  immigration  laws  except  in  so  far  as  it  is 
subject  to  forfeiture  by  the  performance  of  prohibited 
acts.  The  condition  of  the  alien  who  has  entered  the 
United  States  unlawfully  cannot,  during  the  running  of 
the  three  year  period,  be  correctly  classified  as  a condi- 
tional status,  since,  having  entered  in  violation  of  those 
laws,  he  cannot  be  deemed  to  have  acquired  any  status 
thereunder. 

II. 

A.  International  Status. 

The  term  international  status  as  used  in  this  classifica- 
tion denotes  the  situation  which,  in  international  law  as 
opposed  to  municipal  law,  any  alien  occupies  who  leaves 


Status. 


325 


his  country  of  origin,  and  applies  for  and  obtains  admis- 
sion for  residential  purposes  to  the  country  of  another 
sovereign  state. 

While  the  United  States  on  more  than  one  occasion  has 
publicly  announced  and  recognized  as  an  incontrovertible 
principle  “the  inherent  and  inalienable  right  of  man  to 
change  his  home  and  allegiance”  this  enunciation  cannot,  of 
course,  be  deemed  to  ignore  the  equally  important  prin- 
ciple that  the  will  of  the  sovereign  state  is  supreme  within 
its  territorial  limits,  and  that  foreigners  can  enter  only  by 
the  consent  of  the  sovereign.  There  exists,  then,  in  inter- 
national law  no  such  thing  as  the  personal  or  natural 
right  of  the  individual  alien  to  enter  as  against  the  sov- 
ereign will  to  exclude. 

Congress  has  the  undoubted  right  to  prohibit  the  en- 
trance into  this  country  of  any  and  all  aliens,  or  to  expel 
those  already  admitted,  or  to  prohibit  or  conditionally 
permit  the  re-entrance  into  the  United  States  of  aliens 
who  have  already  acquired  a domicile  here.  This  power 
is  an  attribute  of  national  sovereignty  as  necessary  as  that 
of  exercising  any  other  act  tending  toward  national  self- 
preservation.  Needless  to  say  the  exigency  calling  for  the 
exercise  of  this  power  of  general  exclusion  has  never  yet 
arisen,  and  would  in  all  likelihood  prove  of  doubtful  vin- 
dication; for,  as  Hall  says,  for  a state  to  exclude  all  for- 
eigners would  be  to  withdraw  from  the  brotherhood  of 
civilized  peoples.1  On  the  contrary,  the  avowed  policy 
of  this  country  has  been  from  the  time  it  became  a sov- 
ereign state  to  leave  its  ports  open  to  social  and  commer- 
cial intercourse  between  its  citizens  and  the  nationals  of 
its  sister  states. 

While  against  the  expression  or  without  the  acquiesc- 
ence of  the  sovereign  will  no  alien  can  claim  a right  to 
enter  or  remain  within  the  limits  of  a foreign  state,  a dif- 
ferent situation  arises  when  a state,  by  opening  its 
ports,  or  by  the  establishment  or  promulgation  of  a gen- 

iHall  International  Law,  4th  Ed.,  p.  223;  ante,  p.  3. 


326  The  Exclusion  and  Expulsion  of  Aliens. 


eral  policy,  indicates  its  willingness  to  receive  as  residents 
the  citizens  or  subjects  of  foreign  nations.  The  state  by 
extending  such  an  invitation  impliedly  binds  itself  to  pro- 
tect all  foreigners  who  avail  themselves  of  the  privilege 
of  entering;  and  in  return  for  this  protection  the  alien, 
even  though  he  retains  his  citizenship  of  origin,  owes 
at  least  a temporary  allegiance  to  the  protecting  state. 
The  obligation  to  protect  necessarily  involves  the  exist- 
ence of  rights  which  are  to  be  protected;  and  it  is  these 
rights  which  the  alien  may  call  upon  the  state  at  any 
time  to  protect  which  clothe  him  with  a definite  status 
in  international  law.  That  status  is  expressed  in  a well- 
known  principle  of  the  law  of  nations  that  an  alien  avail- 
ing himself  of  the  invitation  thus  offered  by  a foreign 
state,  is  entitled  to  all  the  rights  which  citizens  of  that 
state  enjoy.  On  his  part,  he  assumes  all  obligations  im- 
posed by  the  laws  and  constitution  of  the  country,  except- 
ing rights  or  obligations  of  a nature  purely  political  aris- 
ing merely  by  virtue  of  actual  citizenship.  This  general 
principle  must,  however,  always  be  applied  with  the  reser- 
vation that  the  alien,  in  accepting  the  new  protection,  is 
subject  to  all  the  municipal  laws  of  the  country  offering 
it,  even  though  the  laws  themselves  provide  restrictions 
on  the  rights  of  the  alien  who  submits  himself  to  the 
operation  thereof.  The  state’s  only  method  of  protection 
is  by  the  enforcement  of  its  laws,  and  this  the  alien  is  pre- 
sumed to  know.  If,  on  the  one  hand,  the  offer  of  protection 
extended  by  the  state  is  a guaranty  that  the  alien  coming 
in  response  thereto  shall  be  protected  to  the  extent  of  its 
laws,  on  the  other  hand,  the  fact  that  the  alien  seizes  the 
opportunity  thus  afforded  is  a guaranty  that  he  volun- 
tarily submits  to  the  operation  of  those  laws,  even  though 
their  effect  be  to  impose  limitations  on  the  rights  or  rem- 
edies of  the  alien  not  imposed  upon  citizens. 

It  is,  however,  to  be  presumed  that  in  availing  itself 
of  the  sovereign  privilege  to  enact  restrictive  legislation 
regarding  aliens,  the  state  will  observe  the  utmost  frank- 


Status. 


327 


ness  and  good  faith ; in  other  words  that  when  a state  has 
once  invited  the  entrance  of  foreigners  no  restric- 
tions touching  their  right  to  enter  into  or  reside  therein 
should  be  imposed  upon  them  other  than  those  openly 
designated  in  existing  treaties,  decrees  or  public  laws. 
Sir  Robert  Phillimore  echoes  a previous  enunciation  of 
an  important  principle  of  the  law  of  nations  when  he 
states  that  no  nation  has  the  right  to  set  a trap  for  for- 
eigners.2 As  before  stated,  in  seeking  the  protection  of  a 
foreign  state  the  alien  impliedly  agrees  to  submit  to  what- 
ever restrictions,  whether  touching  the  manner  of  his 
entry  or  the  conditions  under  which  he  may  be  permitted 
to  reside,  which  the  municipal  law  imposes  at  the  time 
of  his  admission  into  the  country;  he  also  impliedly  sub- 
mits to  the  exercise  by  the  state  of  its  inherent  right  to 
impose  further  restrictions  on  him  as  an  alien  during  the 
course  of  his  residence,  or  even  to  cause  his  removal  from 
the  country,  should  the  exigency  therefor  arise.  But  he 
cannot  be  said  to  impliedly  submit  to  burdens  other  than 
those  actually  expressed  in  the  municipal  law  of  the 
country  at  the  time  of  his  entry  or  subsequently  adopted 
by  the  law-making  power  to  meet  conditions  which  may 
not  have  existed  at  the  time  of  such  entry.  In  other  words, 
while  certain  privileges  conferred  upon  aliens  under  the 
laws  existing  at  the  time  of  their  entry  cannot  be  said  to 
constitute  vested  rights3  in  the  sense  that  they  cannot  be 
revoked  by  subsequent  legislation  on  the  part  of  the  state 
based  on  a change  of  conditions  coming  into  existence 
after  such  entry,  the  proper  view  seems  to  be  that,  in 
order  justly  to  work  such  revocation,  not  only  is  new 

2Phillimore,  International  Law,  Yol.  2,  Chap.  2,  citing  Vattel,  Droit 
des  Gens. 

3ln  the  case  of  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  quoted 
in  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905,  the 
Supreme  Court  said:  “The  rights  and  interests  created  by  a treaty  which 
have  become  so  vested  that  its  expiration  or  abrogation  will  not  destroy  or 

impair  them,  are  such  as  are  connected  with  and  lie  in  property, 

not  such  as  are  personal  and  untransferable  in  their  nature/  * 


328  The  Exclusion  and  Expulsion  of  Aliens. 


municipal  legislation  necessary,  but  the  intent  of  the 
legislative  power  to  impose  further  restrictions  on  domi- 
ciliary or  other  rights  lawfully  acquired  must  plainly  ap- 
pear.4 

To  sum  up,  the  status  which  any  alien  seeking  admis- 
sion to  the  United  States  enjoys  by  the  force  of  inter- 
national law  alone,  consists  in  the  right  to  enter  and  re- 
main in  this  country  and  to  enjoy  the  civil  rights  and 
privileges  which  citizens  of  this  country  resident  therein 
may  claim,  subject,  however,  to  all  the  restrictions  and 
limitations  imposed  upon  him  as  an  alien  by  the  laws  of 
Congress  regulating  the  entrance  and  residence  of  foreign- 
ers in  this  country  and  always  subject,  as  long  as  he  re- 
mains an  alien,  to  the  exercise  of  the  inherent  right  of 
Congress  to  exclude  or  expel  him  absolutely  from  United 
States  territory. 

B.  Personal  or  Individual  Status. 

By  the  term  “personal  or  individual  status”  of  an  alien 
seeking  to  enter  or  to  remain  in  the  United  States  is  meant 
his  actual  social  standing  or  condition,  as  opposed  to  the 
position  which  he  may  occupy  by  reason  of  rights  vested 
in  him  or  obligations  imposed  upon  him  by  international 
law  or  the  municipal  law  of  the  United  States.  Before  a 
foreigner  has,  in  any  of  the  methods  provided  by  the  acts 
of  Congress,  established  his  right  to  enter  into  or  remain 
in  the  United  States,  he  cannot  be  said,  as  far  as  this 
country  is  concerned,  to  have  acquired  a municipal  status ; 
for  by  the  provisions  of  those  acts  the  question  whether 
he  has  a right  to  enter  or  remain  depends  on  the  decision 
of  the  administrative  officers  in  those  cases  in  which  their 
decision  is  made  by  law  final,  or  on  the  decision  of  the 
Courts  whenever  they  are  empowerd  to  pass  upon  the  case. 
He  has,  nevertheless,  apart  from  an  international  status, 
a standing  of  some  kind  as  an  individual.  He  may  be  a 

^Rodgers  v.  United  States,  152  Fed.  346;  Lau  Ow  Bew  v.  United  States, 
144  U.  S.  401,  36  L.  E.  340. 


Status. 


329 


laborer,  a lawyer,  or  a merchant;  yet  that  fact  has,  gen- 
erally speaking,  no  legal  existence,  as  far  as  vesting  him 
with  any  right  to  enter  or  to  remain  is  concerned,  until  it 
is  duly  proven.  The  question  of  individual  or  personal 
status  seldom  assumes  importance;  but  cases  have  arisen 
which  point  out  the  need  of  making  clear  the  distinction 
between  what  is  here  defined  as  a municipal  and  a purely 
personal  status. 

Under  the  Chinese  exclusion  laws  there  is  only  one  class 
of  Chinese  persons  who  can  under  no  circumstances  ac- 
quire through  their  personal  status  a municipal  status,  to 
wit,  Chinese  laborers.  All  other  Chinese  may  establish  a 
municipal  status  under  those  laws,  but  only  on  proof  of 
the  existence  of  an  actual  personal  status  other  than  that 
of  laborer.  The  need  of  distinguishing  between  a per- 
sonal and  a municipal  status  can,  of  course,  only  arise 
where  the  personal  status,  duly  proven,  is  such  as  can  lay 
the  foundation  for  a municipal  status. 

It  is  perhaps  the  lack  of  precision  with  which  the  term 
“status”  has  been  applied  in  questions  arising  under  the 
Chinese  Exclusion  laws  which  leads  to  the  need  of  appre- 
ciating the  fact  that  aside  from  its  creating  a foundation 
for  establishing  a municipal  status,  personal  status  is  an 
element  which  cannot  always  be  overlooked.  For  in- 
stance, it  is  often  affirmed  that  a Chinese  alien  who  fails 
to  prove  his  right  to  enter  the  United  States  has  no  status 
whatever.  What  is  meant  is  that  through  failing  to  prove 
the  requisite  personal  status — that  is,  membership  in  a 
class  which  entitles  the  applicant  to  admission  under  the 
Chinese  Exclusion  laws — he  has  failed  to  give  proof  of  a 
right  to  enter  under  those  laws.  On  more  than  one  occa- 
sion the  courts  have  gone  so  far  as  to  hold  that  failure  to 
prove  the  existence  of  a personal  status  which,  if  proven, 
would  give  the  applicant  the  right  to  enter  the  United 
States,  leaves  him  so  entirely  without  a status  of  any 
kind  as  to  make  it  incumbent  upon  the  law  to  vest  him 
with  an  artificial  standing  quite  different  from  what  his 


330  The  Exclusion  and  Expulsion  of  Aliens. 

personal  status  actually  is.  In  other  words,  the  Federal 
courts  have  in  one  or  two  instances  taken  the  ground  that 
even  where  it  is  admitted  that  an  alien  actually  belongs  to 
one  of  the  exempted  classes,  the  fact  of  his  having  been 
admitted  on  a deficient  certificate  by  the  examining  officer 
absolutely  deprives  him  of,  or  nullifies  in  law,  his  stand- 
ing as  a member  of  that  class. 

In  the  case  of  the  United  States  v.  Chu  Chee5  it  was 
held  that  two  Chinese  minors  admitted  on  deficient  stu- 
dent certificates,  who  from  the  time  of  their  entrance  into 
the  United  States  continued  to  be  students,  were  laborers 
because  their  father,  domiciled  in  this  country,  was  a 
laborer ; that  their  status  was  that  of  laborers  at  the  time 
they  were  admitted  and  that  they  could  not  be  deemed 
to  assume  an  exempt  status  after  unlawful  entry  by  doing 
the  acts  incidental  to  such  status.  The  Chinese  Exclusion 
acts  contain  no  provision  to  the  effect  that  persons  of  the 
exempt  classes  who  fail  to  produce  certificates  issued  in 
accordance  with  the  law  shall  be  deemed  to  be  other  than 
what  they  actually  are;  those  acts  simply  provide  that 
such  persons  shall  be  refused  admission  into  this  country. 
The  true  status  of  the  applicants  under  the  facts  found,  was 
that  of  students  who  had  been  allowed  to  enter  the  United 
States  on  defective  certificates;  and  the  right  to  enter 
being  by  law  made  to  depend  on  the  presentation  to  the 
proper  officials  of  certificates  filled  out  as  prescribed  by 
law,  they  did  not  acquire  the  right  to  enter.  But  the 
actual  status,  meaning  thereby  the  condition  or  situation 
of  a person,  cannot  be  altered  by  failure  to  present  proper 
proof  thereof,  although  the  exercise  of  the  right  claimed 
by  virtue  of  the  status — the  right  of  entrance  in  this 
case — may  be  denied  until  proper  proof  thereof  is  pre- 
sented. There  is  no  doubt  that,  had  the  applicants  been 
refused  admission  at  the  port  because  of  their  failure  to 
present  the  required  evidence  of  their  right  to  enter,  this 


s 93  Fed.  797. 


Status. 


331 


defect  could  have  been  subsequently  cured  by  presenting 
certificates  in  the  form  required  by  law.  The  court  held 
that  by  reason  of  the  defects  in  the  certificates  presented 
they  could  not  be  students,  and  that  not  being  students, 
and  being  minors,  they  had  no  individual  status  whatever, 
apparently  overlooking  the  fact  that  the  real  question  in- 
volved in  the  case  was  not  the  controversion  of  a status 
claimed,  but  the  question  of  whether  or  not  the  defective 
certificates  gave  the  holders  the  right  to  remain ; and  that 
the  decision  of  this  question  did  not  involve  the  consider- 
ation of  whether  the  boys  were  or  were  not  laborers. 

This  case  is  often  referred  to  as  constituting  authority 
for  the  proposition  that  an  exempt  status  cannot  be  ac- 
quired by  one  who  has  entered  the  United  States  unlaw- 
fully. But,  as  pointed  out,  in  so  far  as  the  court  took  it 
for  granted  that  the  defendants  attempted  to  assume  an 
exempt  status  after  unlawful  entry  clearly  it  must  be 
wrong;  for  all  they  sought  to  do  was  to  maintain  the 
status  of  students  after  having  been  permitted  to  enter. 
The  view  that  they  must  be  considered  as  having  acquired 
the  personal  status  of  their  father,  based  as  it  is  on  the 
assumption  of  the  absence  of  any  status  of  their  own, 
would  seem  equally  unfounded.  But  assuming  that  being 
minor  sons  of  a laborer  they  could  not  belong  to  the  exempt 
student  class — which  in  itself  is  absurd — and  assuming 
furthermore  that  they  actually  took  on  the  status  of  their 
father,  the  fact  that  the  rights  acquired  by  him  as  a 
laborer  were  transmitted  to  them  could  not  make  them 
laborers.  They  were,  under  this  conception,  the  minor 
children  of  a laborer  who  himself  had  the  right  to  re- 
main in  the  United  States.  In  order  to  acquire  this  right 
he  had  been  obliged  to  register  under  the  Act  of  May  5, 
1892,  but  this  obligation  was  not  by  law  communicated  to 
the  boys,  for  the  simple  reason  that  they  were  not  laborers. 
The  Supreme  Court  has  decided  that  the  obligation  rest- 
ing on  Chinese  persons  of  the  exempt  class  to  produce  the 


332  The  Exclusion  and  Expulsion  of  Aliens. 

certificates  of  identity  required  by  the  Act  of  1882  in 
order  to  entitle  them  to  admission  to  the  United  States, 
does  not  rest  upon  the  wives  and  minor  children.6  It 
appears,  however,  that  in  its  final  result — that  the  boys 
were  subject  to  deportation — the  decision  was  correct, 
since  seeking  admission  as  members  of  an  exempt  class, 
they  were  bound  to  justify  their  right  to  enter  in  the 
method  required  by  law ; and  although  admitted  by  an  im- 
migration official,  were  unlawfully  in  the  United  States, 
since  their  certificates — on  which  alone  their  right  to  enter 
was  based — were  deficient  in  law.  In  this  regard  the  case 
is  analogous  to  that  of  the  laborer  who  enters  in  absence 
of  any  right  at  all  and  then  subsequently  becomes  a mem- 
ber of  the  exempted  class.  It  is  the  unlawful  entry  which 
constitutes  in  such  cases  the  real  ground  of  deportation 
irrespective  of  the  status  subsequently  acquired. 

It  seems  clear  that  the  personal  status  of  an  applicant 
for  admission  is  no  more  nor  less  in  fact  than  what  he  is 
at  the  time  of  making  his  application ; and  his  actual  con- 
dition is  not  affeqted  by  the  fact  that  he  fails  to  prove  the 
existence  thereof  to  the  satisfaction  of  the  inspecting 
authorities  and  in  the  mode  prescribed  by  the  statute. 
His  right  to  enter  does  not  depend  on  the  existence  of  a 
given  condition,  but  on  whether  or  not  he  succeeds  in 
proving  the  fact  in  the  mode  and  in  accordance  with  the 
conditions  prescribed  by  law.  Thus,  while  the  examining 
inspector  may  be  entirely  satisfied  in  his  own  mind  that  a 
Chinese  person  seeking  admission  is  a member  of  one  of 
the  classes  exempt  under  the  Chinese  Exclusion  act,  he 
must  deny  him  admission  if  the  certificate  presented  by 
him  does  not  meet  the  requirements  of  the  act;  but  the 
position  of  the  rejected  applicant  is  in  fact  merely  that 
of  a member  of  such  exempt  class  who  has  not*  presented 
documents  sufficient  in  law  to  entitle  him  to  admission. 
His  actual  status  or  condition,  viewed  as  a question  of 

eUnited  States  v.  Gue  Lim,  176  U.  S.  459,  44  Law  Ed.  544. 


Status. 


333 


fact  rather  than  of  law,  is  not  affected  by  the  circum- 
stance that  his  papers  are  deficient.  After  rejection  he 
may  return  with  a new  or  amended  certificate  and  be  ad- 
mitted upon  satisfactorily  passing  the  inspector’s  exami- 
nation. The  Chu  Chee  case  shows  that  the  observance  of 
these  principles  becomes  of  practical  value  in  cases  where 
the  examining  officer,  convinced  that  the  applicant  belongs 
to  one  of  the  exempt  classes,  permits  him  to  enter  on  a de- 
ficient certificate.  It  is  true  that  entrance  in  such  a case 
is  unlawfully  effected;  but  the  fact  of  unlawful  entrance 
cannot  operate  logically  to  divest  the  alien  of  the  actual 
personal  status  with  which  he  is  clothed.  The  true  ground 
of  expulsion  in  such  a case  is  not  that  the  alien  is  not  a 
member  of  the  exempt  class,  but  because,  although  a mem- 
ber of  such  class,  he  has  not  entered  this  country  in  exact 
accordance  with  the  terms  of  the  law  authorizing  the  en- 
trance of  such  persons. 

The  subject  of  personal  status  as  distinguished  from  the 
mental  or  moral  or  physical  condition  of  a person,  has  not 
the  same  importance  when  considered  in  connection  with 
the  immigration  laws  that  it  bears  to  the  Chinese  Exclu- 
sion acts.  Under  the  latter  the  primary  question  to  be 
determined  is  whether  or  not  the  Chinese  alien  belongs  to 
one  of  the  exempt  classes;  under  the  former,  whether  the 
alien  is  a member  of  a general  class  the  members  of  which 
are  generally  admitted  to  entry,  or  is  afflicted  with  mental, 
moral,  or  physical  disabilities  which,  by  the  immigration 
laws,  exclude  him  from  admission  to  this  country.  Under 
the  Chinese  Exclusion  acts  the  question  of  admissibility 
is  made  one  of  vocational  classification,  while  under  the 
Immigration  acts  it  is  largely  one  of  personal  qualifica- 
tion. Under  the  Chinese  Exclusion  acts  the  question  of 
personal  status  acquires  importance  from  the  fact  that  it 
involves  the  possession  of  certain  social  attributes, 
whereas  questions  of  social  classification  play  but  an  in- 
significant part  in  the  determination  of  the  question  of 


334  The  Exclusion  and  Expulsion  of  Aliens. 

the  admissibiliy  of  an  alien  under  the  Immigration  acts. 
Under  the  Immigration  acts  it  is  immaterial  whether  the 
alien  other  than  Chinese  seeking  admission  to  the  United 
States  is  a laborer,  a merchant,  or  a lawyer;  his  right  to 
enter  depends  absolutely  upon  his  mental,  moral,  or  physi- 
cal fitness.  As  the  Immigration  acts  apply  to  aliens  and 
yet  leave  the  Chinese  Exclusion  acts  in  full  force  and 
effect,  the  right  of  Chinese  persons  to  enter  or  to  remain 
depends,  first,  on  personal  status  dependent  upon  voca- 
tional classification;  second,  on  proof  of  the  existence  of 
the  classified  status;  and,  third,  upon  the  fact  that  the.) 
are  free  from  disabilities  the  presence  of  which  would  ex- 
clude them  under  the  Immigration  act.  By  the  Chinese 
acts,  the  burden  of  proving  the  existence  of  the  personal 
status  upon  which  subsequent  municipal  status  must  be 
based  is  cast  upon  the  applicant;  under  the  Immigration 
acts  personal  status,  from  the  point  of  view  of  vocational 
classification,  not  being  one  of  the  necessary  elements  of 
admissibility,  is  of  no  importance;  and,  as  aliens  other 
than  Chinese  are  generally  admissible,  when  administer- 
ing the  Immigration  acts  the  burden  of  proving  that  an 
alien  cannot  claim  the  general  exemption  rests  ordinarily 
with  the  Government. 

C.  Preliminary  Status. 

The  question  of  the  personal  or  individual  status  of 
aliens  seeking  admission  to  the  United  States  has  been 
discussed  from  the  standpoint,  irrespective  of  proof,  of 
what  the  actual  standing  or  condition  of  such  an  alien  is, 
without  reference  to  any  rights  to  which  he  may  lay  claim 
because  he  is  within  the  jurisdiction  of  the  United  States. 
The  alien  who  leaves  his  country  of  origin  with  the  inten- 
tion of  taking  up  his  permanent  abode  within  the  United 
States,  and  in  pursuance  of  that  intention  comes  to  a port 
of  the  United  States  may  be  said  to  renounce,  as  far  as 
personal  inclination  is  concerned,  his  allegiance  to  his 
former  sovereign  and  to  proffer  his  allegiance  to  the  new 


Status. 


335 


sovereign.  Once  within  the  jurisdiction  of  this  country 
he  has,  at  least  for  the  time  being,  placed  himself  beyond 
the  operation  of  the  law  of  the  state  of  his  origin  except, 
of  course,  in  so  far  as  by  treaty  between  that  country  and 
the  United  States  it  may  have  been  agreed  to  return  him 
to  his  sovereign’s  jurisdiction,  as  for  instance,  where  he 
is  a fugitive  from  justice  and  subject  to  extradition.  The 
ordinary  alien  immigrant  arriving  at  a port  of  the  United 
States,  but  not  yet  admitted  by  the  Immigration  authori- 
ties, has  nevertheless  come  to  this  country,  and  is,  with 
qualifications,  within  its  jurisdiction  and  subject  to  the 
operation  of  its  laws.  His  status  is  that  of  a citizen  of  a 
foreign  power  seeking  admission  to  the  United  States  and 
temporarily  within  its  jurisdiction  until  the  question  of 
his  admissibility  under  the  laws  relating  to  the  admission 
of  aliens  is  finally  decided.  The  political  question  to  be 
determined  by  the  United  States  is  whether  or  not  it  will 
accept  the  allegiance  proffered.  It  is  true  that  by  the  mere 
fact  of  coming  within  this  jurisdiction  the  alien  has  placed 
himself  within  the  protection  of  the  state  exercising  that 
jurisdiction;  and  that  no  right  to  protection,  however 
limited,  can  exist  without  giving  rise  to  certain  duties  of 
obedience  and  allegiance.  But  the  ephemeral  allegiance 
brought  into  being  by  the  physical  presence  of  the  alien 
within  this  jurisdiction  is  far  removed  from  even  that  tem- 
porary allegiance  to  which  residence  or  presence  actually 
acquired  within  the  territorial  limits  of  a sovereign  state 
give  rise;  and  the  fact  that  the  alien  himself  may  be  will- 
ing and  even  anxious  to  pledge  a permanent  allegiance 
under  these  conditions  cannot  alter  the  nature  of  the  re- 
lations existing  between  him  and  the  United  States  at  this 
preliminary  stage.  The  question  is  still  open  as  to 
whether  or  not  the  United  States  will  accept  from  him 
that  allegiance  which  is  the  necessary  result  of  actual 
presence  within  the  territorial  limits  of  this  country  and 
extend  to  him  the  corresponding  protection.  The  obliga- 
tion to  protect  necessarily  implies  the  existence  of  rights 


336  The  Exclusion  and  Expulsion  of  Aliens. 

to  be  protected,  and  the  term  preliminary  status”  of 
the  alien  as  used  in  this  connection  designates  the  meas- 
ure of  those  rights  which,  under  these  conditions,  he  can 
successfully  call  upon  the  judicial  or  executive  authorities 
of  the  United  States  to  enforce.  It  is  not  the  physical  sur- 
roundings of  the  alien — whether  he  is  still  detained  on  or 
returned  to  the  vessel  on  which  he  came,  or  has  been  re- 
moved to  a house  of  detention  or  any  other  suitable  place 
of  maintenance  for  safe  keeping— that  affects  the  nature 
of  his  allegiance,  the  quality  or  amount  of  the  protection 
due  him,  or  the  rights  which  he  can  claim  thereunder.  It 
was  affirmed  at  an  early  period  in  the  history  of  the  Im- 
migration acts  that  the  removal  of  the  alien  from  the  ves- 
sel to  temporary  confinement  within  the  territorial  limits 
of  the  United  States  must  have  no  effect  upon  his  pre- 
liminary status.  But  it  has  been  affirmed  judicially  that 
the  mere  fact  of  having  set  foot  on  land  pending  the  de- 
termination of  deportation  proceedings  does  not  alter  the 
alien’s  situation,  in  so  far  as  his  right  to  invoke  the  ap- 
plication of  constitutional  guarantees  is  concerned.  For 
such  purposes  his  situation  is  no  more  nor  less  that  it 
would  be  had  he  never  been  placed  on  shore.7 

It  has  been  said  that  the  constitution  of  the  United 
States  may  be  invoked  for  the  protection  of  each  and 
every  person  within  the  territorial  limits  of  the  United 
States  including  every  Chinese  alien  who  has  entered  and 
is  found  therein;8  but  this  is  far  from  saying  that  each 
and  every  personal  guarantee  contained  in  that  instru- 
ment applies  with  equal  force  to  all  individuals  in  the 
jurisdiction  of  the  United  States,  irrespective  of  the  con- 
ditions under  which  they  are  invoked.  As  has  been  stated9 
the  position  of  aliens  who  have  been  admitted  into  the 

?Ekiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146;  United  States 
v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  United  States  v.  Seabury,  133 
Fed.  983;  In  re  Gayde,  113  Fed.  588;  In  re  Way  Tai,  96  Fed.  484;  and 
see  Zartarian  v.  Billings,  204  U.  S.  170,  51  Law  Ed.  428. 

sUnited  States  v.  Wong  Dep  Ken,  57  Fed.  206. 

*Ante,  p.  134. 


Status. 


337 


United  States  and  made  the  subject  of  deportation  pro- 
ceedings prosecuted  in  accordance  with  the  laws  regard- 
ing the  admission  and  expulsion  of  aliens  passed  by  Con- 
gress in  the  exercise  of  its  sovereign  powers  is  sui  generis ; 
the  constitutional  guarantees  of  the  right  to  trial  by  jury, 
of  the  right  to  be  confronted  with  one’s  accusers,  and  of 
the  right  to  be  excused  from  testifying  against  one’s  self 
have  no  application  to  such  proceedings.10  But  no  court 
has  thus  far  unqualifiedly  asserted  that  the  constitutional 
guaranty  of  due  process  of  law  does  not  apply  to  aliens 
seeking  to  enter  the  United  States;  on  the  contrary,  such 
due  process  has  been  provided  by  Congress  in  appointing 
methods  of  administrative  procedure  and  of  regulating 
the  admission  and  exclusion  of  aliens. 

If  this  principle  applies  to  aliens  subjected  to  deporta- 
tion proceedings  who  have  already  been  admitted  into  the 
country,  it  must  then,  a fortiori , fit  conditions  arising  from 
the  application  of  aliens  for  admission  and  prior  to  the 
fact  of  such  admission.  Being  physically  within  the  ju- 
risdiction of  the  United  States  he  has  the  right  to  invoke 
due  process  of  law.  He  cannot  base  his  demand  on  the 
ground  that  the  nature  of  the  proceedings  per  se  falls 
short  of  being  due  process ; for,  being  created  and  author- 
ized by  Congress  in  the  exercise  of  powers  bestowed  by  the 
constitution,  those  proceedings  represent  the  only  process 
applicable  to  the  case.  But,  even  so,  the  procedure 
adopted,  must  not  in  any  of  its  phases,  violate  any  of  the 
fundamental  principles  of  right  and  justice  on  which  the 
Constitution  is  based.  Thus,  if  it  provided  for  the  arbi- 
trary deportation  of  aliens,  or  for  their  imprisonment 
after  an  administrative  hearing  as  the  result  of  the  at- 
tempt to  enter  when  not  entitled  to  do  so,  the  alien  would 

i°Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905; 
Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121;  Yama- 
taya  v.  Fisher,  189  U.  S.  186,  46  Law  Ed.  721;  Ekiu  v.  United  States,  142 
U.  S.  651,  35  Law  Ed.  1146. 


338  The  Exclusion  and  Expulsion  of  Aliens. 


have  his  right  of  appeal  to  the  Courts.11  Again,  were  at- 
tempt made  under  the  Immigration  laws  to  deport  a per- 
son not  a citizen  of  the  United  States,  to  whom  those  laws 
have  no  application  he  could,  on  the  plea  of  absence  of 
due  process  be  released  from  such  wrongful  detention.12 
The  courts  have  however  stopped  at  this  point,  holding 
that  except  in  such  extreme  instances  as  above  cited  aliens 
detected  in  the  attempt  to  violate  the  laws  of  this  country 
relating  to  their  admission  have  no  right  to  invoke  the 
guarantees  of  its  national  constitution.13 

D.  Municipal  Status. 

The  term  “municipal  status”  in  its  specific  application 
to  the  Immigration  and  Exclusion  Laws  is  here  used  to 
denote  the  rights  acquired  by  an  alien  under  the  munici- 
pal laws  of  the  United  States  regulating  the  subject  of  the 
admission  and  exclusion  of  aliens  after  having  been  duly 
admitted  to  residence  here  by  the  administrative  officers; 
or,  it  may  be  added,  an  alien  who  enters  this  country  irre- 
spective of  the  provisions  of  the  Immigration  or  the  Exclu- 
sion laws,  where  those  laws  have  no  application  to  the 
particular  alien;  and  to  these  two  classes  of  foreigners 
there  must  be  added  a third — that  of  aliens  who,  after 
having  entered  unlawfully  have  remained  here  for  a longer 
period  than  that  in  which  the  law  authorizes  their  de- 
portation, if  found  to  have  entered  unlawfully.  This  con- 
dition is,  as  between  the  Immigration  and  Chinese  Exclu- 
sion Laws  peculiar  only  as  to  the  former,  since  the  latter 
provide  no  period  after  the  expiration  of  which  Chinese 

nYamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721;  Wong  Wing  v. 
United  States,  163  U.  S.  230,  41  Law  Ed.  140. 

12 In  re  Buchsbaum,  141  Fed.  221,  affirmed  in  Rodgers  v.  United  States, 
152  Fed.  346;  United  States  v.  Nakashima,  160  Fed.  842;  Gonzales  v. 
Williams,  192  U.  S.  1,  48  Law  Ed.  317. 

i3United  States  ex  rel.  Turner  v.  Williams,  194  U.  S.  279,  48  Law  Ed. 
979;  In  re  Chin  Wah,  182  Fed.  256;  Ex  parte  Lung  Wing  Wun,  161  Fed. 
211;  Wong  Sang  v.  United  States,  144  Fed.  968;  United  States  v.  Ju  Toy, 
198  U.  S.  253,  49  Law  Ed.  1040. 


Status. 


339 


persons  found  to  have  entered  this  country  are  no  longer 
subject  to  expulsion. 

The  fixed  municipal  status  is,  of  course,  permanent 
only  insofar  as  existing  laws  regulating  the  admission  and 
exclusion  of  aliens  are  concerned.  No  foreigner,  as  long 
as  he  retains  his  political  status  as  such,  can  be  said  to 
acquire  a permanent  municipal  status  in  the  United 
States,  in  the  sense  that  it  may  not  be  submitted  to  the 
restrictive  operation  of  Congressional  legislation  passed 
subsequent  to  his  admission,  or  altogether  terminated  by 
such  legislation;  in  other  words,  the  rights  of  foreigners 
residing  in  the  United  States  are  always  conditional  on 
the  continuance  of  the  governmental  permission  to  exer- 
cise them. 

It  is  not  necessary,  in  order  to  acquire  a fixed  municipal 
status,  in  the  sense  in  which  the  term  is  used  here,  that 
the  alien  shall  be  one  of  a class  not  subject  to  exclusion 
under  the  Exclusion  or  Immigration  acts;  for  since  those 
acts  designate  in  various  provisions  the  conditions  under 
which  aliens  who  have  already  entered  may  remain,  the 
fulfillment  of  those  conditions,  or  the  expiration  of  the 
term  during  which  their  fulfillment  may  be  required, 
serves  to  terminate  the  jurisdictional  authority  of  ad- 
ministrative officers  to  deport.  Thus,  it  is  provided  in  sec- 
tion 21  of  the  Immigration  act  that  any  alien  who  has 
entered  the  United  States  may,  within  three  years,  be 
arrested  and  deported  on  a warrant  issued  by  the  Secre- 
tary of  Commerce  and  Labor,  if  the  latter  shall  be  of  the 
opinion  that  the  alien  is  unlawfully  in  the  United  States. 
The  act  of  deporting  such  alien  is  the  extent  to  which  the 
Immigration  laws  can  be  operative  with  regard  to  him 
within  the  three  year  period.  With  the  passing  of  the 
period  the  right  to  deport  no  longer  exists,  and  the  right 
to  remain  becomes  absolute  as  far  as  the  Immigration  act 
is  concerned.  So  too  with  regard  to  the  right  of  the  Sec- 
retary of  Commerce  and  Labor  to  deport  within  three 
years  after  landing  aliens  who  within  that  period  have 


340  The  Exclusion  and  Expulsion  of  Aliens. 

become  public  charges  from  causes  existing  prior  to  land- 
ing; the  expiration  of  the  three  year  period  places  the 
alien  beyond  the  reach  of  the  provision. 

It  is  to  be  noted  however,  that,  although  the  standing  of 
the  alien  with  regard  to  the  rights  which  he  may  exercise 
after  entry  is  conditional  on  being  allowed  to  continue  to 
exercise  them  during  the  three  year  period  ( and  to  that  ex- 
tent his  municipal  status  under  that  law  might  be  desig- 
nated for  the  sake  of  convenience  as  a conditional  munici- 
pal status ) the  true  ground  for  his  expulsion  is  not  that  he 
is  occupying  a status  subject  to  termination  by  the  admin- 
istrative authorities  within  the  designated  period,  but 
because,  being  unlawfully  in  the  United  States  he  is  to  be 
deemed  as  having  entered  unlawfully  and  therefore  as 
never  having  acquired  any  municipal  status  whatever. 

The  Acquisition  of  a “municipal  status”  and  a domicile 

distinguished. 

The  term  “municipal  status”  acquired  under  the  immi- 
gration laws  is  in  no  way  to  be  confused  with  the  acquisi- 
tion of  domicile.  An  alien,  who,  whether  entering  in  viola- 
tion of  the  Immigration  acts,  or,  after  being  duly  passed  by 
the  immigration  authorities  in  the  manner  provided  by 
law,  takes  up  his  residence  here  with  intent  to  remain  has 
done  all  that  is  necessary  for  the  acquisition  of  a domicile. 
The  only  difference  is  that  if  the  entry  is  lawful  the  mu- 
nicipal status  is  fully  established,  subject  only  to  termi- 
nation by  the  commission  of  acts  subsequent  to  entry 
which  the  law  provides  shall  justify  the  forfeiture  of  the 
domicile  lawfully  acquired;  whereas,  if  the  entry  is  un- 
lawful the  municipal  status  is  not  complete  except  on 
the  expiration  of  the  three  year  period  within  which  aliens 
entering  in  violation  of  law  are  subject  to  deportation  on 
the  ground  of  unlawful  entry.  Municipal  status  under 
the  Act  of  1907,  as  amended  by  the  Act  of  March  26, 
1910,  when  fully  acquired  by  aliens,  involves  not  only  the 
acquisition  of  a domicile,  but  of  the  right  to  maintain  it 


Status. 


341 


subject  only  to  its  forfeiture  by  the  commission  of  acts 
which  the  law  provides  shall  have  that  effect. 

The  distinction  between  the  mere  presence  of  an  alien 
in  this  country  after  unlawful  entry  subject  to  termina- 
tion by  deportation  within  the  statutory  period,  and  a 
status  lawfully  acquired  under  the  Immigration  law  sub- 
ject to  forfeiture  by  the  commission  of  a certain  act  or 
acts  is  by  no  means  academic.  The  recognition  of  this 
distinction  becomes  of  the  first  importance  in  considering 
questions  arising  in  connection  with  the  right  of  an  alien 
to  re-enter  the  country  based  on  previous  domicile  here; 
for  in  so  far  as,  under  the  Immigration  acts,  the  right  of 
an  alien  to  re-enter  is  based  on  continuing  rights  of  domi- 
cile previously  acquired,  it  seems  plain  that  the  acquisi- 
tion and  the  maintenance  of  the  domicile  must  be  lawful 
in  order  to  sustain  the  alleged  right  to  re-enter  based 
thereon.  The  alien  who  enters  the  United  States  lawfully 
is,  theoretically  at  least,  absolutely  immune  from  the  oper- 
ation of  the  three  year  provision;  his  municipal  status  is 
acquired  at  the  moment  that  his  entry  is  lawfully  accom- 
plished and  the  fact  that  he  leaves  this  country  for  a tem- 
porary visit  abroad  prior  to  the  expiration  of  the  three 
year  period  can  have  no  effect  on  rights,  domiciliary  or 
others,  already  acquired,  which,  through  the  very  fact  of 
their  lawful  acquisition  are  beyond  the  reach  of  the  three 
year  period.  On  the  other  hand  the  alien  who  enters  un- 
lawfully and  departs  within  the  three  year  period  has, 
from  the  time  of  entry  until  that  of  temporary  departure, 
never  acquired  any  municipal  status  under  the  Immigra- 
tion acts,  and  cannot  therefore,  invoke  an  unauthorized 
residence  in  support  of  the  right  to  retain  or  resume  it. 
A different  question  is  presented  by  cases  where  the  three 
year  period  has  run  as  to  aliens  who  have  unlawfully  en- 
tered and  remained  in  the  United  States  until  the  expira- 
tion thereof.  This  question  will  be  considered  in  a later 


342  The  Exclusion  and  Expulsion  of  Aliens. 

section.14  The  only  example  of  true  conditional  municipal 
status  afforded  by  the  Immigration  law  is  in  Section  3 as 
amended  by  the  Act  of  March  26,  1910,  which  provides  for 
the  deportation  to  the  country  from  whence  they  came, 
of  aliens  who,  after  having  entered  the  United  States  law- 
fully or  otherwise,  are  shown  to  have  committed  during 
their  sojourn  here  certain  prohibited  acts.  Here  the  law 
provides  for  the  forfeiture  by  deportation  of  an  estab- 
lished municipal  status  by  those  who  have  lawfully  ac- 
quired it — which  is  very  different  from  the  removal  from 
the  United  States  of  persons  who  have  never  lawfully 
come  within  its  limits. 

(I.)  The  Acquisition  and  Loss  of  Municipal  Status. 

Inasmuch  as  the  provisions  of  the  Chinese  Exclusion 
and  Immigration  Acts  constitute  the  municipal  legisla- 
tion adopted  by  Congress  for  the  regulation  of  the  admis- 
sion and  expulsion  of  aliens  from  the  United  States,  the 
term  “Municipal  Status’’  as  here  used  denotes  the  rights 
and  obligations  granted  to  and  imposed  upon  foreigners 
by  those  special  laws — not  the  general  standing  or  condi- 
tion of  aliens  in  this  country  apart  from  the  operation  of 
these  special  acts;  for  their  general  municipal  status  does 
not  include  rights  or  obligations  originating  in  or  de- 
pendent on  the  laws  regarding  the  admission  or  expul- 
sion of  aliens. 

1.  Under  the  Chinese  Exclusion  Acts. 

(A.)  Acquisition  (In  General). 

1.  Of  Individual  Municipal  Status. 

The  acquisition  of  Municipal  status  under  the  Chinese 
Exclusion  Acts  depends  on  ( 1 ) the  existence  of  a personal 
status  in  the  applicant  which,  if  proven,  entitles  him  to 
entry  at  once;  (2)  proof  of  the  personal  status  in  the 


i *Post,  p.  465. 


Status. 


343 


manner  provided  by  law.  Mere  length  of  residence  in  this 
country  is  insufficient  to  establish  the  existence  of  a status 
lawfully  acquired  under  these  acts,  or  to  give  rise  to  a 
presumption  that  a Chinese  person  entered  before  the  Act 
of  1882  went  into  effect.15 

By  Article  I of  the  Treaty  of  November  17th,  1880, 
between  the  United  States  and  China16  it  was  mutually 
agreed  that  the  United  States  might  regulate,  limit  or 
suspend  the  coming  to  or  residence  in  this  country  of 
Chinese  laborers  but  that  such  coming  or  residence  might 
not  be  absolutely  prohibited.  The  Acts  of  May  6,  1882, 
and  July  5,  1884,  passed  for  the  purpose  of  exercising  the 
right  of  suspension  of  Chinese  immigration  acknowledged 
in  the  treaty,  prohibited  for  the  term  of  ten  years  the 
coming  to  the  United  States  of  all  Chinese  laborers  ex- 
cept such  as  were  already  in  the  country  on  the  date  of 
the  conclusion  of  the  treaty,  or  should  have  entered  within 
ninety  days  thereafter.  The  effect  of  this  legislation  was 
to  render  the  acquisition  of  a municipal  status  under  the 
Exclusion  acts  an  impossibility  for  Chinese  persons  of 
the  laboring  class.  Provision  was  made,  however,  for  the 
retention  of  rights  already  acquired  by  means  of  certifi- 
cates to  be  delivered  by  the  customs  officers  to  Chinese 
laborers  already  in  the  United  States  on  the  occasion  of 
their  departure  from  this  country  whereby  their  identifi- 
cation on  return  from  a temporary  absence  might  be  se- 
cured. 

The  acquisition  of  municipal  status  by  members  of  the 
exempt  classes  under  those  acts  was  made  conditional  on 
the  presentation  at  the  ports  of  entry  of  a certificate  of 
identity  issued  by  designated  authorities  of  the  Chinese 
government,  commonly  called  a “Section  6”  certificate. 
This  certificate  was  made  by  the  laws  in  force  to  consti- 
tute prima  facie  evidence  only  that  the  rights  enjoyed  by 

^United  States  v.  Ah  Chung,  130  Fed.  885. 

i QAnte,  p.  26. 


344  The  Exclusion  and  Expulsion  of  Aliens. 


virtue  of  entry  granted  on  presentation  thereof  were  law- 
fully acquired;  and  the  holder  might  at  any  time  after 
entering  be  deported  if  the  authorities  found  that  the 
entry  was  unlawful.  Unlawful  entry  might  result  from 
several  causes,  such  as  the  wrongful  acquisition  of  the 
certificate  by  a person  not  entitled  thereto,  or  the  fact  that 
the  certificate  itself  did  not  meet  with  the  requirements 
prescribed  by  law.17  But  the  fact  that  the  acts  provided 
that  the  contents  of  the  certificate  were  always  subject  to 
rebuttal  could  not  in  law  qualify  the  right  to  remain  as 
conditional  provided  that  it  actually  existed.  A Chinese 
person — and  this  term  includes  all  Chinese  persons 
whether  domiciled  in  China  or  elsewhere  at  the  time  of 
their  application  for  admission  to  the  United  States18 — ad- 
mitted under  the  law  either  has  or  has  not  acquired  a 
municipal  status  thereunder.  If  his  entry  is  lawful  his 
status  exists  the  moment  he  is  admitted:  if  unlawful,  he 
never  acquires  any  status  under  the  Exclusion  laws,  and 
the  protection  which  he  enjoys  as  a resident  may  be  taken 
away  by  deportation  as  soon  as  his  illegal  presence  is  dis- 
covered and  proven.  In  such  cases  no  question  of  mu- 
nicipal status  arises. 

The  municipal  status  acquired  by  entry  based  on  a “sec- 
tion 6”  certificate  issued  according  to  law,  while  being 
complete,  as  far  as  the  act  under  which  it  was  issued  was 
concerned,  was  and  is  subject  to  termination  in  any  mode 
which  such  succeeding  statutes  might  or  may  prescribe. 
The  Chinese  person  of  the  exempt  class,  being  an  alien 
and,  under  our  laws,  incapable  of  naturalization,  could 
claim  no  greater  right  through  having  been  admitted  in 
accordance  with  the  Exclusion  Act  of  1882  than  any  other 
alien  residing  in  the  United  States.  He  like  any  other 
alien,  can  never  acquire  by  domicile  or  otherwise,  a vested 
right  to  remain.  On  four  distinct  occasions  Congress  has 

i^Cheung  Pang  v.  United  States,  133  Fed.  392;  United  States  v.  Pin 
Kwan,  100  Fed.  609;  Mar  Bing  Guey  v.  United  States,  97  Fed.  576. 

i»Act  of  September  13,  1888;  United  States  v.  Foong  King,  132  Fed.  107. 


Status. 


345 


exercised  its  inherent  right  to  expel  Chinese,  irrespective 
of  whether  they  have  entered  lawfully  under  the  Exclusion 
laws,  and  without  regard  to  domiciliary  rights  acquired 
by  residence,  even  when  based  on  prior  treaties;  and  on 
each  occasion  the  power  of  Congress  to  enact  such  pro- 
visions has  been  upheld  by  the  highest  tribunal  of  the 
United  States. 

By  the  Act  of  October  1, 1888,  Congress  denied  the  right 
of  reentering  this  country  to  Chinese  laborers  whether  or 
not  provided  with  the  return  certificates  prescribed  by 
the  Acts  in  force,  and  which  under  these  acts  entitled  the 
holder  to  return  to  this  country.  By  the  Act  of  May  6, 
1892,  further  residence  in  the  United  States  by  any  Chi- 
nese laborer,  whether  legally  here  or  not,  was  made  con- 
ditional on  hi$  obtaining  a certificate  of  registration  from 
the  Collector  of  Internal  Revenue,  or  proving  by  special 
rules  of  evidence  the  fact  that  he  had  resided  here  prior  to 
the  date  on  which  the  law  went  into  effect,  and  had  been 
prevented  by  Unavoidable  causes’’  from  securing  said 
certificate.  To  obtain  a municipal  status  under  the  new 
law  the  certificate  of  residence  was  sufficient,  and  it  was 
held  that  in  order  to  overcome  the  presumption  of  the  ex- 
istence of  such  status  arising  from  its  possession  it  was 
necessary  for  the  testimony  of  the  Government  to  be  clear 
and  convincing.19  Indeed  it  was  held  in  one  case  that 
where  a Chinese  person  was  ordered  deported  in  a judg- 
ment on  habeas  corpus  where  the  petitioner  had  sought 
judicial  relief  from  an  order  of  deportation,  and  after 
giving  bail  failed  to  appear  and  was  later  apprehended  for 
the  purpose  of  carrying  out  the  judgment,  and  was  found 
to  have  been  granted  a certificate  of  residence  duly  issued 
by  the  Collector  of  Internal  Revenue  under  the  Act  of 
1892  as  amended,  the  certificate  constituted  conclusive 
proof  of  his  right  to  remain  in  this  country.20  The  effect 
of  the  judgment  of  discharge  rendered  by  a United  States 

19 Jew  Sing  v.  United  States,  97  Fed.  582. 

20In  re  Tom  Hon,  149  Fed.  842. 


346  The  Exclusion  and  Expulsion  of  Aliens. 


Commissioner  has  been  held  a bar  to  further  proceedings 
against  the  same  party  on  the  same  facts  before  a Dis- 
trict court  of  the  same  district;21  and  the  jurisdiction  of 
the  Commissioner  to  cancel  a certificate  of  residence  on 
the  ground  that  it  was  obtained  by  fraud  has  been  de- 
nied.22 But  the  judgment  of  discharge  cannot  operate  to 
establish  the  existence  of  municipal  status  under  the  Act 
of  1892  if  not  rendered  on  the  merits  of  the  case.23  Again 
the  Act  of  November  3,  1893,  amending  that  of  May  5, 
1892,  provided  that  any  Chinese  person  alleging  himself  to 
be  a Chinese  merchant  seeking  to  re-enter  the  United 
States  was  under  the  obligation  of  proving  the  fact  of  a 
prior  commercial  domicile  in  this  country  for  the  year  im- 
mediately preceding  the  alleged  departure  by  special  rules 
of  evidence  specified  in  the  act.  In  the  absence  of  such 
proof  acquisition  of  a municipal  status  under  this  law  is 
impossible. 

Finally,  by  the  Act  of  August  18,  1894,  Congress  made 
the  right  to  resume  a commercial  domicile  previously  ac- 
quired by  Chinese  person  depend  absolutely  on  the  de- 
cision of  the  appropriate  administrative  officer;  with  vhe 
result  that  to-day  a Chinese  merchant  who  may  have  been 
lawfully  established  in  this  country  for  a generation  can- 
not leave  the  United  States  for  a temporary  visit  to  China 
or  elsewhere  on  business  or  pleasure,  without  running  the 
risk  of  losing  a municipal  status  lawfully  acquired  and  for 
years  as  lawfully  maintained,  unless  he  succeeds  in  prov- 
ing its  existence  under  conditions  far  more  onerous  than 
those  to  which  he  would  be  subjected  had  he  never  ac- 
quired it. 

(2.)  Communicated  Status. 

Generally,  the  acquisition  of  municipal  status  under 
the  exclusion  laws  is,  as  previously  stated,  dependent  on 

2iUnited  States  v.  Yeung  Chu  Keng,  140  Fed.  748. 

22 In  re  Lee  Ho  How,  101  Fed.  115. 

23j&r  parte  Loung  June,  160  Fed.  251. 


Status. 


347 


proof  by  the  applicant  himself  that  he  belongs  to  the 
exempt  classes  of  Chinese,  and  on  the  presentation  of  the 
facts  on  which  the  right  to  enter  is  based  according  to  the 
methods  prescribed  by  law ; i.  e.  by  a certificate  of  identity 
duly  issued.  Due  recognition  is,  however,  accorded  to  par- 
ticular cases  in  which,  in  order  to  entitle  the  applicant  to 
the  right  to  enter,  only  such  evidence  is  required  as  will 
prove  the  existence  of  a communicated  status.  Such  a 
condition  arises  when  a Chinese  person  presents  himself 
for  admission,  the  right  to  enter  being  based  on  a mu- 
nicipal status  previously  acquired  by  an  individual  whose 
social  connection  with  the  applicant  is  so  intimate  and 
binding  as  to  give  rise  to  the  presumption  that  the  rights 
acquired  by  the  former  are  necessarily  communicated  to 
the  latter.  Thus,  it  has  been  definitely  determined,  after 
decided  vacillation  of  judicial  opinion,  that  the  wives  and 
children  of  Chinese  persons  of  the  exempt  classes  who 
have  been  granted  admission  to  the  United  States,  have 
under  the  laws  and  treaties  in  force  the  right  to  enter  by 
virtue  of  either  marital  or  parental  relationship,  and  by 
virtue  of  that  alone.24  In  the  case  of  United  States  v.  Gue 
Lim,25  the  Court  held  that  the  provision  of  Section  6 of 
the  Act  of  May  6,  1882,  as  amended  by  that  of  July  5, 
1884,  which  made  it  incumbent  on  Chinese  members  of 
the  exempt  classes  to  present  a certificate  of  identity  as  a 
prerequisite  to  acquisition  by  them  of  a municipal  status 
under  the  act,  had  no  application  to  the  wife  and  minor 
children  of  a Chinese  merchant  who  accompanied  them  or 
was  already  domiciled  in  this  country.  It  was  pointed  out 
that  the  fact  that  such  persons  were  not  specifically  men- 
tioned as  constituting  members  of  the  exempt  classes  in 
the  treaty  of  1880  could  not  be  interpreted  to  mean  that 

24United  States  v.  Gue  Lim,  176  U.  S.  549,  44  Law  Ed.  554;  In  re 
Chung  Toy  Ho,  42  Fed.  398;  United  States  v.  Foo  Duck,  172  Fed.  856; 
contra  In  re  Ah  Moy,  21  Fed.  785. 

25176  U.  S.  549,  44  Law  Ed.  544. 


348  The  Exclusion  and  Expulsion  of  Aliens. 


they  were  to  be  excluded,  and  that  their  failure  to  present 
the  certificate  of  identity  could  not  afford  just  ground  for 
their  rejection  or  expulsion,  in  as  much  as  they  were  not 
only  not  bound  under  the  treaty  as  such  wife  or  minor 
child  to  obtain  such  certificate  from  their  own  Govern- 
ment, but  wrere  not  entitled  to  do  so.  They  must  enter  or 
remain,  said  the  Court,  as  the  wife  or  minor  child  of  the 
domiciled  husband  or  father,  or  not  at  all.  It  necessarily 
follows  that  the  fact  that  such  persons  have  no  certificate 
in  their  possession  gives  rise  to  no  presumption  that  they 
are  illegally  in  the  United  States.26 

It  is  plain,  then,  that  such  Chinese  persons  seeking  ad- 
mission in  this  capacity  under  the  Exclusion  laws  are  not 
entitled  to  enter  or  remain  of  their  own  right.  But  the 
municipal  status  acquired,  though  of  a communicated 
character,  and  not  based  on  any  inherent  right  to  acquire 
it,  is,  none  the  less,  a status  as  complete  in  every  way  as 
that  of  the  person  from  whom  it  is  derived.  Obviously,  it 
is  erroneous  to  state  that  a Chinese  wife  or  minor  child  has 
no  status  under  the  Exclusion  laws.  What  is  meant  by 
this  statement,  so  frequently  made,  is  that  when  seeking 
to  enter  or  remain  in  the  United  States  such  a wife  or 
minor  child  cannot  base  a claim  to  enter  on  the  existence  in 
the  individual  of  the  right  so  to  do.  The  personal  status  of 
such  persons  remains  of  course  unchanged,  but  they  can- 
not acquire  a municipal  status  of  their  own  right. 

It  does  not  follow,  however,  that  the  wives  or  minor 
children  cannot,  under  existing  laws  or  treaties  acquire 
a municipal  status  of  their  own.  It  is  not  impossible  to 
conceive  that  the  wife  of  a Chinese  member  of  the  exempt 
classes  might  come  to  the  United  States  as  a traveller  for 
curiosity  or  pleasure  or  that  the  minor  child  of  such  per- 
son might  seek  admission  in  a similar  capacity,  or  as  a 
student  or  merchant.  But  in  such  case  the  applicants 
would  be  seeking  to  enter,  not  by  virtue  of  a right  com- 

26United  States  v.  Chin  Sing,  153  Fed.  590. 


Status. 


349 


municated  by  another,  but  because  of  their  membership 
in  one  of  the  classes  allowed  by  treaty  to  enter,  and  would 
therefore,  be  under  the  obligation  of  proving  their  indi- 
vidual personal  status  as  a preliminary  step  to  acquiring 
a municipal  status  under  the  Chinese  Exclusion  laws. 
Aad  as  this  status  can  be  acquired  only  be  presenting  the 
certificate  of  identity  prescribed  by  those  laws,  the  rule 
laid  down  in  the  Gue  Lim  case  would  have  no  application. 

The  Chinese  persons  who  were  allowed  to  remain  in  this 
country  under  the  Gue  Lim  decision  were  the  wife  and 
minor  child  of  a Chinese  merchant  domiciled  here.  Said 
the  Court:  “When  the  fact  is  established  to  the  satisfac- 
tion of  the  said  authorities  that  the  person  claiming  to 
enter  either  as  wife  or  minor  child,  is  in  fact  the  wife  or 
minor  child  of  one  of  the  members  of  a class  mentioned 
5n  the  treaty  as  entitled  to  enter  then  that  person  is  en- 
titled to  admission  without  the  certificate.”  Since  the  de- 
termination of  the  right  of  the  latter  to  enter  has  been  en- 
trusted by  the  Act  of  1894  exclusively  to  the  judgment  of 
executive  officers,  no  right  to  enter  can  be  claimed  on 
behalf  of  the  wife  or  minor  child  in  the  absence  of  a 
favorable  administrative  decision  with  respect  to  the 
status  of  the  husband  or  father.  As  the  Court  expressed 
it:  “They  come  by  reason  of  their  relationship  to  the 
father,  and  whether  they  accompany  or  follow  him,  a 
certificate  is  not  necessary  in  either  case.”  In  order  to 
entitle  the  wife  or  minor  child  to  enter  it  is  not  necessary 
that  the  father  must  have  already  acquired  a commercial 
domicile;  all  that  is  required  is  that  administrative  offi- 
cers shall  have  passed  favorably  upon  his  right  to  enter. 

If  the  reasoning  in  the  Gue  Lim  case  is  applicable  to 
the  wives  or  minor  children  of  a merchant  it  is  of  course 
equally  applicable  to  aliens  similarly  situated  with  regard 
to  members  of  all  the  exempt  classes,  or,  as  the  Court  says, 
all  those  “entitled  to  enter.”  The  Act  of  September  13, 
1888,  and  later  the  treaty  of  December  8,  1894,  provided 
that  any  Chinese  laborer  who  leaves  the  United  States 


350  The  Exclusion  and  Expulsion  of  Aliens. 


may  return  thereto  within  the  period  of  one  year  after  the 
date  of  his  departure,  if  such  laborer  so  departing  has  a 
lawful  wife,  child,  or  parent,  in  the  United  States,  or 
property  therein  of  the  value  of  one  thousand  dollars,  or 
debts  of  like  amount  due  him  and  pending  settlement, 
provided  he  shall  have  duly  obtained  and  on  return  pre- 
sented the  return  certificate  required  by  law.  The  treaty 
of  1880  between  the  United  States  and  China  provided 
that  Chinese  laborers  residing  in  the  United  States  on 
November  17,  1880,  should  be  allowed  to  go  and  come  of 
their  own  free  will  and  accord.  Section  3 of  the  Act  of 
May  6,  1882,  provided  that  the  act  should  not  apply  to 
Chinese  laborers  who  were  in  the  United  States  on  the 
17th  day  of  November,  1880,  or  who  should  come  into  the 
country  before  the  expiration  of  ninety  days  next  after 
the  passage  of  that  act.  It  is  obvious  from  this  legislation 
taken  in  connection  with  the  treaty  which  it  was  intended 
to  supplement,  and  in  connection  with  subsequent  legis- 
lation on  the  subject,  that,  since  August  5,  1882,  Chinese 
laborers  have  been  excluded  from  admission  into  this 
country;  but  it  is  equally  dear  that  Chinese  laborers  who 
resided  here  on  the  17th  of  November,  1880,  or  who  ar- 
rived here  on  or  prior  to  August  5th,  1882,  were,  both  by 
the  provisions  of  the  Act  of  1882  as  well  as  those  of  the 
treaty  of  1880  specially  exempted  from  the  excluding 
clauses  contained  in  the  act.  The  provision  of  the  Act  of 
September  13th,  1888,  stating  how  and  when  Chinese  la- 
borers might  leave  the  United  States  and  return  thereto, 
did  not,  it  would  seem,  create  a new  right  which  members 
of  that  class  had  not  hitherto  enjoyed,  for  the  right  to 
come  and  go  was  already  accorded  them  by  the  treaty  of 
1880;  it  simply  imposed  conditions  with  regard  to  the 
manner  in  which  the  existing  right  might  be  exercised. 
The  same  may  be  said  concerning  Article  II  of  the  treaty 
of  China  of  1894  to  the  same  effect.  It  has  never  been  held 
that  because  under  the  Act  of  November  3,  1893,  Con- 
gress imposed  conditions  on  the  manner  of  re-entry  into 


Status. 


351 


the  country  by  Chinese  persons  alleging  themselves  to  be 
merchants  domiciled  in  the  United  States  such  persons 
are  for  that  reason,  any  the  less  members  of  the  exempt 
classes.  There  seems  to  be  no  good  reason  why,  therefore 
applying  the  principles  of  the  Gue  Lim  case,  any  Chinese 
laborer  returning  from  abroad  within  the  time  designated 
in  the  treaty  of  1894,  and  presenting  a return  certificate 
lawfully  obtained,  could  not  claim  as  a matter  of  right, 
as  a member  of  an  exempted  class,  permission  to  bring 
into  this  country  an  accompanying  wife  or  minor  child. 
It  is  understood  that  this  precise  question  has  not  been 
passed  on  either  judicially  or  administratively — at  least, 
not  since  the  date  of  the  Gue  Lim  decision;  and  since  it 
has  been  uniformly  held  that  the  wife  of  a Chinese  laborer 
takes  his  status  as  to  class  and  is  subject  to  the  same 
class  restrictions  with  her  husband,27  it  is  hard  to  avoid 
the  conclusion  that  she  takes  the  benefits  with  the  bur- 
dens. The  departmental  view  is  that  while  a lawfully 
domiciled  laborer  cannot  bring  his  wife  or  minor  child 
into  the  United  States,  either  accompanying  him,  or  re- 
turning with  him  from  a temporary  lawful  absence,  or  for 
the  purpose  of  joining  him  here,  it  is  conceded  in  adminis- 
trative practice  that  the  wife  or  minor  child  of  such  lab- 
orer living  in  the  United  States  derives  from  the  marital 
relation  a communicated  status  under  which  such  wife  or 
child  may  re-enter,  either  alone  or  with  the  husband  or 
father,  after  temporary  departure,  on  the  statutory  ground 
that  they  have  a husband  or  father  here,  provided  they  do 
not  overstay  the  period  of  one  year  prescribed  by  the  Act 
of  September  13th,  1888. 

While  the  Chinese  laborer  lawfully  in  the  United  States 
is  in  the  full  possession  of  such  municipal  rights  as  he 
may  require  as  a laborer  under  the  Exclusion  acts,  it  is 
possible  for  him  as  an  individual,  to  attain  other  and 
broader  rights.  As  a laborer  he  may  leave  the  United 

27Case  of  the  Chinese  wife  (Ah  Moy),  21  Fed.  785. 


352  The  Exclusion  and  Expulsion  of  Aliens. 

States  and  return  only  on  certain  conditions;  whereas, 
should  he  ameliorate  his  condition  and  become  a person 
engaged  solely  in  matters  of  commercial  enterprise,  or  in 
teaching  or  study,  those  particular  restrictions  as  to  re- 
turn have  no  further  application  to  his  case.  There  is 
nothing  in  the  Exclusion  acts  that  prevents  a voluntary 
change  of  personal  status  on  the  part  of  the  individual; 
but,  while  the  individual  is  left  free  to  act,  the  law  deter- 
mines for  itself  whether  the  acts  done  bring  about  a change 
in  the  personal  status  on  which  new  rights  under  the  Ex- 
clusion laws  may  be  based.  The  change  once  accom- 
plished, the  new  rights  and  obligations  come  at  once  into 
being,  and  former  rights  and  obligations  incident  only  to 
the  old  status  are  terminated. 

A practical  demonstration  of  this  principle  is  afforded 
by  the  case  of  a Chinese  laborer,  who,  having  failed  to  reg- 
ister during  the  registration  period  provided  by  the  Act 
of  May  5,  1892,  as  amended,  subsequently  becomes  a mer- 
chant, and  whose  deportation  is  attempted  on  the  ground 
that  he  failed  to  register  when  a laborer.  The  act  provided 
that  any  Chinese  laborer  who  shall  be  found  within  the 
jurisdiction  of  the  United  States  without  such  certificate 
shall  be  deemed  to  be  unlawfully  in  this  country;  it  does 
not  refer  to  merchants  thus  found.  Thus,  it  has  been  held 
that  an  unregistered  Chinese  laborer,  until  proceeded 
against  under  the  exclusion  acts,  has  all  the  rights  of  a 
resident  alien,  and  among  them  that  of  becoming  a mer- 
chant and  of  enjoying  all  the  rights  of  a merchant.28  But 
a Chinese  person  who,  as  a laborer  has  unlawfully  entered 
the  United  States  cannot,  it  would  seem,  logically  claim 
that  subsequent  acquisition  of  the  mercantile  status  re- 
lieves him  of  the  operation  of  the  act ; for  in  such  case  the 
fact  of  unlawful  entry  would,  under  the  provisions  of 
the  Chinese  exclusion  acts,  necessarily  deprive  him  of  the 

28 Ex  parte  Ow  Guen,  148  Fed.  926;  but  see  contra  United  States  v. 
Chan  Sam,  17  Philippine  Reports  448. 


Status. 


353 


right  to  remain,  irrespective  of  whether  the  right  was 
claimed  by  him  either  as  a merchant  or  a laborer. 

(B.)  Loss  (In  General). 

Loss  of  municipal  status  acquired  under  the  Chinese  ex- 
clusion acts  may  occur  in  one  of  three  ways:  (1)  by  the 
death  of  the  parties;  (2)  by  acts  of  Congress,  and  (3)  by 
the  acts  of  the  parties. 

(a.)  By  Death. 

Loss  of  municipal  status  by  the  death  of  the  parties 
calls  for  comment  only  in  so  far  as  it  involves  the  consid- 
eration of  the  effect  thereof  on  aliens  whose  rights  have 
been  communicated  by  others  who  have  acquired  them  in 
an  individual  capacity.  Wives  or  minor  children  of 
Chinese  who  have  been  admitted  into  the  United  States, 
can,  as  such,  claim  such  similar  privileges  only  so  long 
as  the  marital  relationship  or  the  condition  of  minority 
may  exist.29  This  subject  will  be  further  discussed  in  the 
loss  of  communicated  status. 

(b.)  By  Acts  of  Congress. 

The  question  of  the  effect  of  the  exclusion  acts  on 
municipal  rights  already  acquired  by  Chinese  persons 
in  the  United  States  has  been  the  subject  of  various  de- 

29This  necessarily  only  on  the  assumption  that  they  base  the  right  to 
remain  on  a supposedly  existing  communicated  status  which  has  terminated 
by  the  death  of  the  husband  or  father.  But  on  what  ground  could  the 
widow  of  a domiciled  Chinese  merchant  be  expelled?  Not  because  she 
entered  unlawfully,  for  her  entrance  was  lawful;  nor  because  she  is  a 
member  of  the  laboring  class,  for  she  does  not  become  by  the  death  of  her 
husband  the  member  of  a class  to  which  she  never  belonged.  The  same 
reasoning  is  applicable  to  the  minor  children  of  deceased  merchants;  and, 
in  spite  of  the  departmental  view  to  the  contrary,  it  is  thought  that  the 
Chinese  exclusion  acts  constitute  no  authority  for  the  expulsion  of  such 
persons  on  the  ground  that  they  are  not  members  of  an  exempt  class.  An 
analysis  of  the  Gue  Lim  decision  reveals,  it  is  thought,  the  enunciation  of  no 
principle  in  conflict  with  this  view. 


354  The  Exclusion  and  Expulsion  of  Aliens. 

, . ; . Y • ! 

cisions  by  the  Supreme  Court  of  the  United  States.  In 
the  case  of  Chew  Heong  y.  United  States30  it  was  held  that 
since  Article  II  of  the  Treaty  of  1880  provided  that 
“Chinese  laborers  who  are  now  in  the  United  States  shall 
be  allowed  to  go  and  come  of  their  own  free  will  and 
accord  and  shall  be  accorded  all  the  rights,  privileges,  im- 
munities and  exemptions  which  are  accorded  to  the  citi- 
zens and  subjects  of  the  most  favored  nation/’  and  since 
the  Act  of  1882  was  avowedly  passed  in  furtherance  of  the 
provisions  of  the  treaty,  section  4 of  the  act  providing 
that,  in  order  to  give  Chinese  laborers  the  right  to  return, 
should  they  present  at  the  port  of  return  certificates  of 
identity,  had  no  application  to  Chinese  laborers  who  were 
not  in  the  United  States  at  the  time  the  treaty  was  con- 
cluded or  who  should  not  have  returned  within  ninety 
days  after  the  passage  of  the  act.  The  court  refused  to 
give  the  act  retroactive  force  in  a case  where  it  was 
shown  to  have  been  a physical  impossibility  for  the  alien 
to  conform  to  the  requirements  of  the  act  regarding  the 
certificate,  calling  particular  attention  to  the  fact  that 
the  law  was  enacted  for  the  express  purpose  of  carrying 
out — not  of  obstructing — the  terms  of  the  treaty,  and  to 
the  further  fact  that  in  the  absence  of  legislation  clearly 
and  beyond  doubt  pointing  to  the  abrogation  of  the  treaty 
no  such  intention  on  the  part  of  Congress  could  be  pre- 
sumed. The  principle  enunciated  in  the  decision  was,  in 
a word,  that  a municipal  status  lawfully  acquired  by  an 
alien  residing  in  this  country  under  the  terms  of  a treaty 
entered  into  with  a friendly  power  cannot  be  held  to  be 
terminated  by  general  statutory  provisions  which  do  not 
point  conclusively  to  the  abrogation  of  treaty  rights.31 

The  same  principle  was  expressed  in  the  case  of  Lau  Ow 

80112  U.  S.  536,  28  Law  Ed.  770. 

siSee  also  United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  31  Law  Ed. 
591;  In  re  Leong  Yick  Dew,  19  Fed.  490;  In  re  Chin  Ah  On  et  al,  18  Fed. 
506. 


Status. 


355 


Bew  v.  United  States.32  The  Act  of  July  5,  1884,  that  pro- 
vided that  the  “section  6”  certificate  which  Chinese  per- 
sons of  the  exempt  classes  were  obliged  to  secure  from 
their  own  government  prior  to  coming  to  the  United 
States  should  constitute  the  sole  evidence  of  their  right 
to  admission.  The  petitioner  was  a Chinese  merchant 
domiciled  in  the  United  States  who,  after  giving  full  proof 
of  his  identity  and  occupation  as  required  by  the  regula- 
tions of  the  Treasury  Department  at  that  time,  left  the 
United  States  for  a visit  to  China,  and  on  his  return  was 
refused  admission  by  the  collector  of  the  port  of  San 
Francisco  on  the  ground  that  he  had  failed  when  in  China 
to  obtained  the  certificate  above  referred  to.  It  had  al- 
ready been  held  by  the  Federal  courts  that  no  certificate 
could  be  required  from  Chinese  of  the  exempt  class  seek- 
ing to  enter  or  return  to  the  United  States  when  it  ap- 
peared that  through  residence  in  some  foreign  land  other 
than  China  the  certificate  could  not  have  been  obtained.33 
These  decisions  the  Supreme  Court  cited  with  approval, 
stating  that  the  general  terms  used  in  the  acts  “should  be 
limited  to  those  persons  to  whom  Congress  manifestly  in- 
tended to  apply  them,”  and  that  “no  restriction  on  the 
footing  upon  which  such  persons  (domiciled  foreigners) 
stand  by  reason  of  their  domicile  of  choice  or  commercial 
domicile  is  to  be  presumed.”  The  doctrine  of  the  Chew 
Heong  case  was  thus  in  word  and  spirit  reaffirmed.34 

Prior,  however,  to  rendering  the  decision  last  cited  the 
Supreme  Court  had  occasion  to  examine  the  effect  of  con- 
gressional legislation  purporting  in  terms,  the  intention 
of  which  could  not  be  misunderstood,  to  terminate  the 
municipal  rights  lawfully  acquired  by  Chinese  laborers 
under  the  exclusion  laws  of  1882  and  1884. 

32144  U.  S.  47,  36  Law  Ed.  340. 

33 In  re  Ah  Ting,  23  Fed.  329;  In  re  Low  Yam  Chow,  13  Fed.  605. 

3*United  States  v.  Chin  Quong  Look,  52  Fed.  203;  United  States  v.  Lee 
How,  48  Fed.  825;  In  re  Shong  Toon,  21  Fed.  386;  In  re  Ah  Quan,  21  Fed. 
182;  In  re  Ho  King,  14  Fed.  724. 


356  The  Exclusion  and  Expulsion  of  Aliens. 


The  Act  of  September  13th,  1888,  provides  for  the  issue 
of  return  certificates  to  Chinese  laborers  lawfully  in  the 
United  States  who  might  wish  to  visit  China,  the  produc- 
tion of  which  on  their  return  was,  like  the  certificate  pro- 
vided by  the  Act  of  1884,  to  constitute  the  sole  evidence 
of  that  right.  The  protective  Treaty  with  China  on  the 
ratification  of  which  the  Act  of  September  13th,  1888, 
depended  was  not  ratified  by  that  government,  whereupon 
Congress  passed  the  Act  of  October  1,  1888,  prohibiting 
any  Chinese  laborer  who  had  been,  or  was  then,  or  who 
might  thereafter  be  in  the  United  States  and  who  had  de- 
parted or  who  might  depart  therefrom  to  enter  the  United 
States,  whether  in  possession  of  the  certificate  or  not. 

On  the  broad  ground  that  Chinese  aliens  or  any  other 
aliens  in  the  United  States  were  there  merely  on  suffer- 
ance, and  subject  at  all  times  to  the  exercise  on  the  part 
of  the  United  States,  through  Congress,  of  the  sovereign 
power  to  deport  them;  and  on  the  further  ground  that, 
granting  that  the  Act  of  October  1st,  abrogated  Article 
II  of  the  Treaty  with  China  of  1880  which  provided  that 
Chinese  laborers  then  in  the  United  States  should  be  al- 
lowed to  come  and  go  of  their  own  free  will  there  was 
. nothing  in  the  nature  of  treaty  stipulations  with  foreign 
powers  which  rendered  them  incapable  of  repeal  or  abro- 
gation by  a subsequent  act  of  Congress,  the  Supreme 
Court  held35  that  the  act  was  constitutional,  and  that  a 
Chinese  laborer  who  had  left  the  United  States  prior  to 
October  1,  1888,  was  deprived  by  that  act  of  his  status  of 
Chinese  laborer  with  a right  to  re-enter  the  United  States. 
And  the  same  reasoning  was  applied  in  the  case  of  a 
Chinese  person  claiming  to  be  a returning  merchant  who 
had  left  the  United  States  before  the  passage  of  the  Act 
of  November  3,  1893,  which  provided  as  a condition  of 
admission  that  the  fact  of  prior  mercantile  status  in  the 
United  States  should  be  proven  according  to  special  rules 

36Wan  Shing  v.  United  States,  140  U.  S.  424,  35  Law  Ed.  503. 


Status. 


357 


of  evidence,36  and  it  was  held  that  on  failure  to  produce 
such  proof  the  applicant  was  liable  to  deportation.  It 
has,  however,  been  held  that  in  so  far  as  the  Act  of  No- 
vember 3,  1893,  provided  for  the  registration  of  Chinese 
laborers  it  was  operative  only  on  those  who  were  in  the 
United  States  at  the  time  of  its  passage  ;37  and  that  where 
the  facts  showed  that  a Chinese  non-laborer  who  tem- 
porarily left  the  United  States  on  a visit  to  China  had 
been  domiciled  in  this  country  prior  to  1868,  the  date  of 
the  first  treaty  with  China,  he  was  outside  the  operation 
of  the  exclusion  laws.38 

Again  the  effect  of  the  Act  of  August  18,  1894,  is  in 
point,  insofar  as  it  operates  to  exclude  Chinese  persons 
claiming  the  right  to  enter  or  return  to  the  United  States. 
By  that  act  the  decision  of  administrative  officers  as  to 
the  right  of  aliens  to  enter  the  United  States  was  made 
final  and  not  subject  to  judicial  review;  and  under  it 
the  right  of  persons  alleging  themselves  to  be  returning 
merchants,39  or  even  wives  and  children  of  domiciled 
Chinese  merchants40  have  been  refused  admission,  and 
the  action  of  the  executive  officers  upheld  when  before 
the  Supreme  Court  on  appeal.  Strictly  speaking  these 
decisions  are  not  authorities  on  the  loss  of  status  by  legis- 
lative enactment,  because  the  executive  officers  found  that 
the  status  claimed  did  not  exist,  and  their  finding  of  fact 
was  made  conclusive  on  that  point.  But,  assuming  that 
the  facts  were  as  claimed  by  the  applicants  and  that  the 
administrative  decision  was  wrong  they  show  how  status 
may  be  lost  by  congressional  legislation  without  any  fault 
on  the  part  of  the  alien  who  is  deprived  thereof.  The  en- 

s6United  States  v.  Loo  Way,  68  Fed.  475;  Lew  Jim  v.  United  States,  66 
Fed.  953;  Lai  Moy  v.  United  States,  66  Fed.  955;  In  re  Lung,  In  re  Yue 
Soon,  61  Fed.  641. 

37 In  re  Yue  Bing  Hi,  128  Fed.  319. 

38 Ex  parte  Ng  Quong  Ming,  135  Fed.  378. 

39Lem  Moon  Sing  v.  United  States,  158  U.  S.  539,  39  Law  Ed.  1082. 

40Lee  Lung  v.  Patterson,  186  U.  S.  168,  46  Law  Ed.  1108. 


358  The  Exclusion  and  Expulsion  of  Aliens. 


forcement  of  the  Act  of  1894  in  connection  with  the  Im- 
migration Acts  will  be  considered  at  a later  page.41 

(c.)  By  Act  of  the  Parties. 

(1.)  Loss  of  Individual  Municipal  Status. 

A merchant  or  member  of  the  exempt  class  who  has  en- 
tered on  a deficient  certificate  and  is  on  that  account  de- 
ported has  not  suffered  any  loss  of  status  in  the  sense  of 
having  been  deprived  of  a right  or  privilege  conferred 
upon  him  under  the  exclusion  acts,  because  he  has  never 
been  accorded  the  right  to  enter  or  to  remain  in  the  coun- 
try under  those  acts.  By  failure  to  prove  the  right  to 
enter  in  accordance  with  the  provisions  of  law  he  has 
never  acquired  it ; nor  does  his  deportation  affect  his  right 
to  obtain  a valid  certificate  of  identity  from  his  own  gov- 
ernment. For  the  same  reason  loss  of  status  does  not 
occur  by  deportation  where  the  administrative  authorities 
discover  that  the  facts  alleged  in  the  certificate  on  which 
the  applicant  was  admitted  do  not  exist,  since  no  rights 
can  be  deemed  acquired  by  virtue  of  a certificate  which 
does  not  contain  a true  statement  of  the  applicant’s  stand- 
ing, or  under  a certificate  illegally  issued  to  him,  or  which 
is  deficient  in  its  contents.4121 

Loss  of  status  may  occur  by  virtue  of  acts  done  by  the 
party  irrespective  of  whether  or  not  they  were  in  violation 
of  the  Chinese  exclusion  laws.  Thus,  a Chinese  laborer 
who  leaves  the  United  States  without  taking  out  the  re- 
turn certificate  prescribed  by  law  loses  his  right  to  enter, 
although  his  failure  to  procure  the  same  may  be  due  to 
the  fact  that  at  the  time  of  his  departure  he  had  no  in- 
tention of  returning;42  but  not,  it  has  been  held,  where 
a Chinese  laborer,  lawfully  in  the  United  States,  crosses 
over  the  Mexican  border  line,  and  after  a brief  stay  of  two 

4i Post,  p.  489  et  seq. 

4iaChan  Tse  Cheung  v.  United  States,  189  Fed.  412. 

42United  States  v.  Tuck  Lee,  120  Fed.  989;  In  re  Tong  Ah  Chee,  23  Fed. 
441;  In  re  same,  18  Fed.  527. 


Status. 


359 


or  three  days  returns  to  the  United  States ; for  to  exclude 
him  from  admission  under  such  circumstances  would  be 
an  act  not  contemplated  by  the  exclusion  laws.43  A mer- 
chant who  disposes  of  his  property  and  leaves  without 
the  intention  of  returning  and  then  returns  and  becomes 
a laborer  loses  his  former  status  of  merchant.44  However, 
the  mere  fact  that  a Chinese  person  engaged  in  a legiti- 
mate mercantile  pursuit  in  the  United  States  chooses  to 
dispose  of  his  stock  in  trade  in  this  country  would  not, 
it  would  seem,  necessarily  result  in  his  becoming  a mem- 
ber of  the  laboring  class,  even  for  the  purposes  of  the 
Chinese  exclusion  law.  He  might  well  occupy  the  posi- 
tion of  a retired  merchant.  If,  however,  he  sought  read- 
mission to  the  United  States  as  a merchant  previously  en- 
gaged in  this  country  in  mercantile  pursuits  he  would  be 
obliged,  under  section  2 of  the  Act  of  November  3,  1893, 
in  order  to  obtain  admission  on  that  ground,  to  prove 
that  he  had  been  constantly  employed  in  the  business  of 
a merchant  up  to  the  time  of  his  departure.  It  is 
thought,  moreover,  that  this  particular  provision  is 
meant  to  apply  only  to  those  Chinese  persons  who  seek 
admission  for  the  purpose  of  retaining  and  continuing 
a mercantile  business  which  existed  prior  to  their  depart- 
ure and  has  continued  to  exist  during  their  absence — 
not  to  confer  the  privilege  of  re-entry  without  a “section 
6”  certificate  on  Chinese  who  have  abandoned  their  busi- 
ness on  departure.  The  proper  view  seems  to  be  that 
where  such  business  has  been  abandoned  the  returning 
applicant  must  obtain  and  present  a “section  6”  certificate 
just  as  if  he  was  seeking  to  enter  this  country  for  the 
first  time. 

Again,  rights  existing  by  virtue  of  the  mercantile  status 

^United  States  v.  Lee  Yung,  63  Fed.  520;  but  see  United  States  v. 
Don  On,  49  Fed.  569,  and  United  States  v.  Ah  Sou,  138  Fed.  775,  where 
the  court  refused  to  interfere  with  the  order  of  deportation  issued  against 
a Chinese  girl  when  the  result  of  the  deportation  was  to  relegate  her  to  a 
life  of  slavery. 

44United  States  v.  May  Yim,  115  Fed.  652. 


360  The  Exclusion  and  Expulsion  of  Aliens. 

are  lost  when  a Chinese  merchant  lawfully  domiciled 
in  the  United  States  becomes  a laborer,  although  in  such 
ca$e  his  right  to  remain  in  the  United  States  as  well  as 
to  exercise  other  privileges  inherent  to  the  status  of  resi- 
dent laborers  are  not  lost  thereby;45  and,  as  has  already 
been  stated,  such  rights  are  not  forfeited  by  a Chinese 
laborer  who  was  a merchant  during  the  registration 
period  and  failed  to  procure  a certificate  of  registra- 
tion;46 but,  where  a Chinese  merchant  became  a laborer 
within  the  registration  period  and  failed  to  register  as 
required  by  law,  his  failure  to  do  so  was  held  to  render 
him  subject  to  deportation  in  spite  of  the  circumstances 
of  his  original  entry.47 

The  rights  of  a Chinese  merchant  lawfully  domiciled  in 
the  United  States  are  not  lost  by  the  mere  fact  of  a pro- 
longed absence  in  China,  where  there  is  no  allegation  that 
his  return  was  accomplished  in  a manner  not  prohibited 
by  law.48  This  equally  true  with  regard  to  Chinese  prac- 
ticing recognized  professions  who,  after  having  resided 
in  the  United  States  for  several  years  return  from  a six 
years’  absence  in  China.49 

The  obligation  of  resident  Chinese  laborer’s  to  pro- 
cure return  certificates  in  case  they  wish  to  secure  their 

45 in  re  Yew  Bing  Hi,  128  Fed.  319;  United  States  v.  Louie  Yuen,  128 
Fed.  522 ; United  States  v.  Sun  Won  Tong,  132  Fed.  190. 

46United  States  v.  Seid  Bow,  139  Fed.  56;  In  re  Yew  Bing  Hi,  128 
Fed.  319;  United  States  v.  Louie  Yuen,  128  Fed.  522;  In  re  Chin  Ark 
Wing,  115  Fed.  412;  United  States  v.  Sing  Lee,  71  Fed.  680. 

47Cheung  Him  Nin  v.  United  States,  133  Fed.  391. 

48United  States  v.  Wong  Lung,  103  Fed.  794,  and  see  Lau  Ow  Bew  v. 
United  States,  144  U.  S.  47,  36  Law  Ed.  340;  In  re  Ah  Ting,  23  Fed.  329; 
but  see  with  regard  to  the  effect  of  long  absence,  United  States  v.  Cut 
Yong,  1 U.  S.  D.  Gt.  Hawaii  104;  United  States  v.  Cam  Yow,  ibid.,  113; 
Gee  Fook  Sing  v.  United  States,  49  Fed.  146;  In  re  Louie  Yow,  97  Fed. 
580.  In  the  case  of  Lorenzo  v.  McCoy,  15  Phil.  Rep.  559,  it  was  held  that 
a person  born  of  Chinese  parents  residing  in  the  Philippine  Islands  dur- 
ing their  residence  there  lost  his  citizenship  “if  he  ever  had  it”  by  leaving 
the  Islands  when  a minor  and  staying  away  in  China  for  eleven  years. 

4»Umted  States  v.  Chin  Fee,  94  Fed.  828. 


Status. 


361 


right  to  return  has  already  been  discussed.50  The  fact 
that  a Chinese  laborer  has  left  without  obtaining  the  re- 
turn certificate  prescribed  by  the  acts  in  force  has  been 
held  to  militate  conclusively  against  the  right  to  return 
even  though  he  has  resided  continuously  in  the  United 
States  for  twenty-one  years  and  remained  in  Canada  for 
the  period  of  two  weeks  only.51 

While  departure  and  absence  from  the  United  States 
without  obtaining  the  return  certificate  required  of 
Chinese  laborers  under  the  law  may  be  said  to  constitute 
of  itself  a bar  to  the  exercise  of  the  right  in  future  of 
entering  or  remaining  in  the  United  States,  there  must 
be  an  actual  departure.  Proof  of  such  absence  became 
material  in  the  highest  degree  during  the  period  in  which 
the  Act  of  October  1,  1888,  was  in  force.  That  act  pro- 
vided that  no  Chinese  laborer  could  return  to  the  United 
States  whether  he  held  a return  certificate  or  not.52  Thus, 
it  was  held  that  Chinese  subjects  purchasing  through 
tickets  and  embarking  in  an  American  vessel  from  one 
part  of  the  United  States  to  another,  and  not  leaving 
the  vessel  on  touching  at  foreign  ports,  did  not  depart 
from  the  United  States  within  the  meaning  of  the  Act 
of  1888, 53  presence  on  an  American  vessel  constituting 
presence  within  the  jurisdiction  of  the  United  States.54 
Moreover,  on  this  last-mentioned  ground,  it  was  previously 
held  that  a Chinese  laborer  who  shipped  on  an  American 
vessel  at  London  prior  to  the  passage  of  the  exclusion 
acts  and  remained  on  board  until  arrival  at  an  American 
port,  although  arriving  after  the  date  on  which,  under 
the  Act  of  1882,  Chinese  laborers  might  be  admitted,  was 
entitled  to  land.55 

^oAnte,  p.  358;  and  see  United  States  v.  Lim  Jew,  192  Fed.  644. 

BiUnited  States  v.  Don  On,  49  Fed.  569. 

52Wan  Shing  v.  United  States,  140  U.  S.  424,  35  Law  Ed.  503;  United 
States  v.  Wong  Hong,  71  Fed.  283. 

53 In  re  Tong  Wah  Sick,  36  Fed.  440;  In  re  Jack  Sen  et  al.,  36  Fed.  441. 

5 *Ibid.;  In  re  Ah  Sing,  13  Fed.  286. 

55 In  re  Mon  Can,  14  Fed.  44. 


362  The  Exclusion  and  Expulsion  of  Aliens. 

As  appears,56  Chinese  seamen  or  persons  employed 
aboard  ship  are  considered  to  have  a status  other  than 
that  of  laborers  and  do  not  lose  their  right  to  resume  their 
United  States  residence  on  the  return  of  the  vessel  to  this 
country,  merely  because  they  have  been  permitted  by  the 
captain  to  land  for  a few  hours  at  a foreign  port  or 
place;57  but  their  status  as  such  is  lost  if,  while  in  an 
American  port  as  members  of  a vessel’s  crew,  they  effect 
their  escape  to  United  States  territory;58  and  the  courts 
have  further  held  that  a Chinese  person  employed  on  a 
ship  of  American  register  is  to  be  deemed  for  the  purpose 
of  the  act  to  be  within  American  territory.59 

Loss  of  status  has  been  held  to  follow  acts  deliberately 
performed  by  the  defendants  which  constitute  a violation  of 
the  exclusion  laws.  The  act  of  escape  to  American  soil 
above  referred  to,  affords  a good  example,  The  fact  of  be- 
ing a seaman  constituting  the  essence  of  the  right  of  the 
defendant  to  enter  the  port,  the  voluntary  casting  aside  of 
this  attribute  necessarily  puts  an  end  to  the  existence  of 
any  right,  claimed  or  exercised  thereunder;  and  the  de- 
fendant must  stand  revealed  as  a Chinese  person  whose 
living  is  gained  by  the  work  of  his  hands,  and  must,  there- 
fore, be  deemed  unlawfully  in  the  United  States.  As 
stated,  the  fact  that  a Chinese  person  who  entered  on  a 
merchant’s  certificate  engages  immediately  on  landing  in 
laboring  pursuits,  while  it  renders  him  subject  to  depor- 
tation on  the  theory  that  his  acts  rebut  the  contents  of  the 
certificate,61  cannot  properly  be  said  to  subject  him  to 
loss  of  mercantile  status,  for  he  cannot  be  deemed  to  have 
acquired  the  right  as  a merchant  to  enter  or  to  remain  in 

56 Ante,  p.  361. 

57 In  re  Ah  Tie  et  ah,  13  Fed.  291. 

587*1,  re  Mon  Can,  14  Fed.  44. 

59Case  of  the  Chinese  Merchant,  13  Fed.  605;  In  re  Ah  Sing,  13  Fed. 
286;  In  re  Mon  Can,  14  Fed.  44. 

siChain  Chio  Fong  v.  United  States,  133  Fed.  154;  United  States  v.  Ng 
Park  Tau,  86  Fed.  605. 


Status. 


363 


the  United  States.  All  Chinese  persons  being  by  law  re- 
quired to  enter  at  the  ports  designated  by  the  Act  of 
September  13,  1888, 62  a Chinese  person  lawfully  in  the 
United  States  who,  after  securing  a return  certificate,  re- 
enters at  any  other  than  a designated  port  loses  thereby 
his  right  to  remain.63  Whether  or  not  the  wrongful  act 
deprives  him  of  the  right  to  return  thereafter  by  arrival 
at  a designated  port  presents  an  interesting  question — but 
one  which  in  the  case  of  Chinese  laborers  might  well,  it 
seems,  be  answered  in  the  negative,  on  the  ground  of  fail- 
ure to  obtain  the  return  certificate  provided  by  the  act 
after  the  wrongful  re-entry. 

The  concurrence  of  conditions,  which,  taken  collec- 
tively, constitute  the  mercantile  status  of  Chinese  per- 
sons residing  in  the  United  States  being  defined  by 
statute,  must  be  shown  to  exist  in  the  case  of  him  who 
claims  to  exercise  rights  thereunder;  and  it  follows  that 
the  failure  or  absence  of  any  one  of  the  indispensable 
features  of  the  mercantile  status  gives  rise  to  the  existence 
of  a different  status  or  condition.  What  the  resulting 
status  is,  depends  on  the  nature  of  its  elements.  Thus, 
if  a person  having  a mercantile  status  exercises  acts  of 
manual  labor  other  than  such  as  are  necessary  for  the 
conduct  of  his  business  as  such  merchant  he  ceases  to 
be  a merchant  as  defined  by  the  Act  of  1893,  and  must  be 
held  to  have  the  acquired  status  with  which  the  laws 
invest  those  who  engage  in  manual  labor — to  wit:  that  of 
a Chinese  laborer.  It  may  be  well  to  point  out  in  this 
connection  that  although,  as  above  shown,  the  loss  of 
status  is  the  result  of  certain  acts,  some  performed  law- 
fully and  some  with  an  unlawful  motive,  and  although  the 
expression  forfeiture  of  status”  is  occasionally  used  when 
speaking  of  such  cases,  the  loss  thereof  cannot  be  held  to 
be  in  the  nature  of  the  infliction  of  a penalty.  A status 
is  lost  because  certain  of  its  elements  cease  to  exist,  or 

62Section  7. 

63United  States  v.  Tuck  Lee,  120  Fed.  989. 


364  The  Exclusion  and  Expulsion  of  Aliens. 


because  the  person  claiming  possession  of  them  does  cer- 
tain acts  inconsistent  therewith,  the  performance  of  which 
brings  about  a result  in  law  which  is  irreconcilable  with 
the  original  status.  Sometimes,  as  in  the  case  of  a person 
with  mercantile  interests  who  engages  in  manual  labor 
without  parting  with  that  interest,  the  loss  of  the  mer- 
cantile interest  involves  a reversion  to  the  status  of  la- 
borer. But  such  a person  does  not  become  a laborer  be- 
cause he  has  ceased  to  be  a merchant,  or  because  he  is  to 
be  punished  for  doing  the  acts  of  manual  labor  while  a 
merchant — but  because  the  nature  of  the  acts  done  estab- 
lishes the  fact  that  he  is  a laborer  under  the  law.  Thus,  a 
merchant  might  cease  to  engage  in  business  and  devote  his 
time  to  study  or  travel  for  curiosity  or  pleasure;  he  would 
probably  lose  his  status  of  merchant  thereby,  but  he  would 
certainly  not,  under  the  facts  suggested,  be  a laborer. 

It  has  been  held  that  a merchant  who  has  committed 
a crime  and  has  been  sent  to  jail  at  hard  labor  is,  during 
that  time  at  least,  a laborer,  and,  as  such,  subject  to  de- 
portation for  failure  to  register,  although  the  term  of  his 
imprisonment  extended  through  the  registration  period.64 
The  court  proceeded  on  the  assumption  that  because  the 
Act  of  1893  provided  that  a Chinese  person  in  order  to  be 
a merchant,  must  not  engage  in  manual  labor  unneces- 
sary to  his  business  the  alien  in  this  case  was  a laborer; 
and  that  because  he  was  a laborer  during  his  imprison- 
ment, and  failed  to  register,  he  lost  the  right  to  remain 
in  the  United  States.  The  effect  of  the  decision  was  to 
deprive  the  defendant  of  his  municipal  status  as  a mer- 
chant. It  is  to  be  observed  that  it  was  not  the  commission 
of  the  offense  while  a merchant,  which  was  taken  to  consti- 
tute the  real  ground  of  deportation,  but  the  fact  that  the 
court  conceived  that  the  labor  done  in  prison  changed 
the  prisoner’s  personal  status  to  that  of  laborer;  and  that 

64United  States  v.  Wong  Ah  Hung,  62  Fed.  1005;  United  States  v.  Ah 
Poing,  69  Fed.  972;  and  see  same  as  to  laborer,  United  States  v.  Chang 
Fi  Koon,  83  Fed.  143. 


Status. 


365 


failure  to  register  as  a laborer  although  in  jail  at  the  time 
of  registration,  resulted  in  the  loss  of  his  municipal  status 
as  a laborer.  In  order  to  justify  deportation  under  this 
act  it  was  necessary,  first,  that  the  person  deported  be  a 
laborer  within  the  meaning  of  the  act,  and,  second,  that 
while  such  laborer  he  had  failed  to  register  during  the 
registration  period.  At  the  time  of  his  conviction  the 
prisoner  was  unquestionably  a merchant.  His  municipal 
rights  under  the  exclusion  acts  were  made  to  depend  abso- 
lutely on  his  vocation.  What  his  vocation  was  depended 
upon  the  nature  of  the  acts  in  which  he  was  engaged,  and 
there  was  no  question  but  that  up  to  the  time  of  his  con- 
viction he  had  committed  no  act  of  manual  labor  incon- 
sistent with  his  mercantile  status.  The  law  provides  that 
a Chinese  person  is  a merchant  if  he  is  engaged  in  mer- 
cantile pursuits  at  a fixed  place  of  business  conducted 
in  his  name,  and  does  not  engage  in  the  performance  of 
manual  labor  except  such  as  is  necessary  to  the  conduct 
of  his  business  as  such  merchant.  Unquestionably  the 
mercantile  status  of  the  prisoner  would  have  ceased  to 
exist  had  he  voluntarily  divested  himself  of  the  attri- 
butes designated  by  law  as  necessary  to  establish  or  main- 
tain the  mercantile  status.  The  distinction  between  the 
merchant  and  the  laboring  class  is  based  wholly  upon  vo- 
cational classification.  The  law  provided  that  if  acts  of 
manual  labor  necessary  for  the  pursuance  of  the  vocation 
of  a merchant  were  performed  by  a Chinese  person  such 
acts  constituted  incontrovertible  evidence  that  his  voca- 
tion was  that  of  a laborer,  not  of  a merchant.  The  only 
distinction  made  by  the  very  law  under  which  the  pris- 
oner was  deported  was  one  of  vocation.  The  definition  of 
the  term  “merchant”  has  been  given;  that  of  laborers  is 
given  in  the  same  section  as  “skilled  and  unskilled  manual 
laborers” — Chinese  “employed”  or  “engaged”  in  certain 
pursuits.  It  is  needless  to  say  that  a Chinese  merchant 
arrested  for  the  violation  of  a state  law  and  convicted  to 
imprisonment  at  hard  labor  does  not  thereby  become  a 


366  The  Exclusion  and  Expulsion  of  Aliens. 

“laborer”  within  the  meaning  of  the  act.  He  is  a Chinese 
merchant  undergoing  forced  punishment  for  crime.  The 
act  might  have  provided  the  loss  of  mercantile  status  fol- 
lowed by  deportation  as  a penalty  for  the  commission  of 
crimes  by  Chinese  merchants;  but  it  did  not  do  so.  The 
result  of  the  sentence  was  in  effect  to  impose  deportation 
as  a penalty  for  the  commission  of  a crime. 

(2.)  Loss  of  Communicated  Status. 

The  right  of  the  wife  and  child  to  enter  in  that  ca- 
pacity is  dependent  on  the  status  of  the  husband  and 
father  to  such  an  extent  that  forfeiture  or  abandonment 
of  the  right  to  remain  on  the  latter’s  part  terminates  the 
corresponding  right  of  the  wife  or  child.  The  fact  of  the 
relationship  when  established  does  not  confer  upon  either 
wife  or  child  any  distinct  status  in  the  sense  of  an  indi- 
vidual and  independent  political  attribute  peculiar  to 
her  or  it.  Each  has  its  own  status  as  such  wife  or  minor 
child  to  be  sure;  but  it  is  not  a status  which  includes  in 
its  elements  the  right  of  either,  as  a member  of  an  ex- 
empt class  to  enter  or  to  remain  in  the  United  States. 
Thus  marriage  to  a Chinese  person  entitled  to  remain  in 
the  United  States,  while  it  adds  further  rights  to  the  sum 
of  those  which  the  wife  might  have  exercised,  apart  from 
such  marital  connection,  does  not  vest  her  with  the  right 
to  enter  or  remain  in  this  country  independent  of  the 
right  of  her  husband  to  do  so.  She  must  enter  or  remain 
as  the  wife  of  her  domiciled  husband,  or  not  at  all.65 
Should  she  marry  again  after  the  death  of  her  first  hus- 
band her  right  to  enter  or  to  remain  must  be  determined 
by  that  of  her  second  husband;  consequently,  the  wife  of 
a merchant  who,  on  his  death,  marries  a laborer  can 
exercise  only  such  rights  of  domicile  and  return  as  her 

65United  States  v.  Gue  Lim,  176  U.  S.  549,  44  Law  Ed.  544;  provided 
that  she  does  not  seek  to  enter  in  her  individual  right  as  a member  of  one 
of  the  exempt  classes. 


Status. 


3GT 


second  husband  has,66  provided  that  the  relationship  is 
set  up  as  the  only  basis  of  her  right  to  enter  or  remain; 
and  in  the  case  of  a Chinese  woman  who  lawfully  entered 
the  United  States  before  the  enactment  of  the  Chinese 
exclusion  laws,  and  remained,  but  failed  to  obtain  the  re- 
quired certificate,  and  thereafter  and  prior  to  her  arrest, 
was  lawfully  married  to  a citizen  of  the  United  States,  it 
was  held  that  she  was  not  subject  to  deportation  under 
the  Act  of  1892.67  Having  entered  the  United  States  when 
there  was  no  laws  in  existence  prohibiting  such  entry  she 
entered  lawfully;  and  even  had  she  come  as  a single 
woman  after  the  passage  of  those  laws,  it  is  not  seen  why, 
as  a matter  of  law,  she  might  not  have  come  in  on  a “sec- 
tion 6”  certificate,  as  a Chinese  subject  traveling  for  pur- 
poses of  pleasure  or  curiosity.  Be  that  as  it  may,  it  seems 
clear  that  she  was  not  a laborer,  inasmuch  as  the  acts  do 
not  provide  nor  do  the  courts  hold  that  an  unmarried 
Chinese  woman  qua  a single  woman  is  a laborer ; and  that 
being  the  case,  she  would  not  be  under  any  legal  obliga- 
tion to  register  as  such  laborer.  The  court  based  its  de- 
cision on  the  ground,  however,  that  her  marriage  to  a 
citizen  of  the  United  States  communicated  to  her  all  the 
rights  of  domicile  which  he  could  exercise.  But  in  order 
to  exercise  the  rights  communicated  by  the  husband’s 
status  the  marital  relation  must  be  genuine,  or  rather 
must  have  been  found  to  be  genuine  by  the  proper  authori- 
ties ; and  where  a Chinese  girl  was  brought  into  the  United 
States  for  immoral  purposes  and  after  escaping  from 
these  influences  was  married  to  a Chinese  laborer  in  the 
United  States,  she  was  held  liable  to  deportation  in  view 

66Case  of  the  Chinese  wife,  21  Fed.  785. 

67Tsoi  Sim  v.  United  States,  116  Fed.  920;  but  see  in  this  connection 
United  States  v.  Cam  Yow,  1 U.  S.  D.  Ct.  Hawaii  113,  where  it  was  held 
that  where  the  preliminary  marriage  ceremony  was  conducted  in  China  and 
the  bride  comes  to  lives  with  her  husband  who  was  in  Hawaii  at  the  time, 
and  was  allowed  to  enter  on  the  representation  that  she  was  his  wife,  and 
where,  after  entry  the  marriage  ceremony  was  performed  after  her  arrival 
in  Hawaii,  held  that  she  was  not  the  wife  of  her  husband  at  the  time  of  her 
arrival,  and  that  she  was  subject  to  deportation. 


368  The  Exclusion  and  Expulsion  of  Aliens. 


of  proof  which  created  considerable  doubt  as  to  whether 
the  marriage  was  regarded  as  bona  fide  as  between  the 
parties  themselves.68  In  such  a case  the  defendant  could 
not  have  been  deported  on  the  ground  of  “communicated 
status”  (i.  e.y  on  the  ground  that  she  was  a laborer),  inas- 
much as  the  marriage  relationship  was  not  held  to  have 
been  proven ; but  deportation  might  well  have  been  based  on 
the  ground  that  she  did  not  belong  to  one  of  the  exempted 
classes.  It  may  be  stated  in  connection  with  this  case  that 
Chinese  women  practicing  prostitution  are  laborers 
within  the  intent  of  the  Chinese  exclusion  acts.69  And 
where  the  facts  show  that  a Chinese  woman  was  engaged 
in  prostitution  at  the  time  of  her  arrest  for  deportation, 
and  when  on  bail  during  appeal  contracted  a marriage 
with  a citizen  of  the  United  States  of  Chinese  descent 
obviously  for  the  purpose  of  avoiding  deportation,  such 
facts  were  held  sufficient  to  show  that  there  was  no  mar- 
riage, but  a sham  ceremony  entered  into  for  the  purpose 
of  defeating  the  object  of  the  exclusion  laws,  and  that 
under  such  circumstances  she  could  acquire  no  rights  by 
virtue  of  the  existence  of  citizenship  in  the  alleged  hus- 
band.70 The  bona  fides  of  the  relationship  claimed  is  a 
sine  qua  non  of  admissibility;  and  although  a marriage 
arbitrated  in  China  on  behalf  of  a Chinese  girl  and  her 
betrothed,  who  at  at  the  time  was  lawfully  in  the  United 
States  was  held  not  to  be  a valid  marriage  by  the  laws 
of  this  country  the  bride  was  permitted  to  enter,  since  it 
appeared  that  the  marriage  was  contracted  under  the 
laws  of  China  was  entered  into  in  good  faith.71 

68United  States  v.  Ah  Sou,  138  Fed.  775. 

69Looe  Shee  v.  North,  170  Fed.  566;  Lee  Ah  Yin  v.  United  States,  116 
Fed.  614. 

70Wong  Heung  v.  Elliott,  179  Fed.  110. 

7i In  re  Lum  Lin  Ying,  59  Fed.  682;  but  see  contra  United  States  v.  Cam 
Yow,  1 U.  S.  D.  Ct.  Hawaii,  113,  where  the  same  state  of  facts  was  pre- 
sented, except  that  an  additional  ceremony  was  performed  after  the  bride 
was  duly  admitted,  but  was  nevertheless  ordered  deported  after  entry,  the 
court  sustaining  the  order  on  the  ground  that  the  deportee  was  not  married 
at  the  time  of  admission. 


Status. 


369 


With  the  minor  children — adopted  as  well  as  actual72 
— as  in  the  case  of  the  wives  of  Chinese  persons,  the  right 
to  enter  or  remain  in  the  United  States  is  communicated 
by  virtue  of  the  father’s  status  ;73  and  merely  because  they 
are  not  in  their  own  right  members  of  the  exempt  classes 
mentioned  in  the  treaty  with  China  of  1880  does  not  mean 
that  they  are  laborers.74  To  say  that  the  actual  status 
of  the  merchant  or  laborer  is  communicated  to  the  wife 
or  child  would  be  to  allege  that  the  wife  or  child  herself 
or  himself  is  a merchant,  or  laborer,  as  the  case  may  be, 
which  would  be  contrary  to  the  fact.  As  the  rights  which 
the  child  enjoys  in  the  absence  of  any  personal  status  self 
acquired  with  increasing  years  are  dependent  on  the  ex- 
istence of  those  rights  in  the  father,  the  extinction  of  such 
rights  in  the  latter  effects  the  extinction  thereof,  as  far  as 
the  child  is  concerned.  But  from  the  fact  of  cessation  or 
abandonment  of  the  father’s  rights  it  does  not  follow  that 
the  child  who  has  effected  a lawful  entry  into  the  United 
States  loses  thereby  his  right  to  remain.  What  those 
rights  are  must  be  determined  by  the  nature  of  the  inde- 
pendent status  thus  suddenly  thrust  upon  him;  and  the 
nature  of  this  status  is  to  be  determined  by  the  course  of 
conduct  which  he  pursues.  Thus,  where  a Chinese  minor 
child  entered  the  United  States  lawfully  as  the  child  of  a 
Chinese  merchant  domiciled  in  the  United  States,  the  re- 
turn of  the  father  to  China  sine  animo  revertendi  was  held 
to  interrupt  the  communication  to  the  son  of  the  rights 
flowing  from  the  father’s  mercantile  status,  and  the 
former’s  status,  although  still  a minor  nineteen  years 
of  age,  was  determined  by  his  own  occupation — which, 
being  that  of  a laborer  during  the  registration  period 
rendered  registration  as  to  him  an  absolute  requirement.75 

72United  States  v.  Joe  Dick,  134  Fed.  988. 

^United  States  v.  Gue  Lim,  176  U.  S.  549,  44  Law  Ed.  544;  United 
States  v.  Foo  Duck,  172  Fed.  856. 

7*In  re  Lee  Yee  Sing,  85  Fed.  635. 

75United  States  v.  Joe  Dick,  134  Fed.  938. 


370  The  Exclusion  and  Expulsion  of  Aliens. 

But  where,  under  identical  circumstances  of  entrance  the 
alien  only  performed  occasional  acts  of  manual  labor  it 
was  held  that  he  was  not  subject  to  deportation.76  And 
the  status  enjoyed  by  the  minor  child  of  a merchant  domi- 
ciled here  by  virtue  of  his  relationship  to  his  father  is 
not  lost  where,  after  lawful  entry  and  an  unsuccessful 
business  venture,  he  works  occasionally  in  a laundry  pend- 
ing a re-establishment  in  a new  mercantile  business.77 
There  is  no  good  reason  why  the  mere  fact  of  the  minority 
of  the  son  during  the  father’s  presence  in  the  United 
States  should  prevent  the  former  from  acquiring  a status 
of  his  own,  whether  that  of  merchant,  student,  or  laborer, 
provided  that  he  is  competent  to  select  and  perform  the 
acts  necessary  to  an  individual  status;  but  it  seems  that 
the  mere  performance  of  manual  labor  by  the  son  of  a 
domiciled  merchant  interspersed  with  periods  of  study 
does  not  alter  his  status  as  a merchant’s  minor  son;  and 
the  fact  that  since  his  majority  he  has  worked  as  a laborer 
does  not  make  his  residence  in  the  United  States  unlaw- 
ful where  he  became  a laborer  after  the  registration 
period.78 

2.  Under  the  Immigration  Laws. 

(A.)  Acquisition.  (In  General.) 

It  has  been  said  that  the  purpose  of  the  exclusion  acts 
was  to  prohibit  the  entrance  of  all  Chinese  except  those 
especially  exempted,  while  the  intent  of  Congress  in  pass- 
ing the  laws  on  immigration  was  to  allow  all  aliens  to 
enter  ^except  those  to  whom  entrance  was  expressly  pro- 
hibited.79 There  is  little  in  the  treaties  with  China  or  in 
the  acts  themselves  to  warrant  the  unqualified  acceptance 
of  this  assertion;  the  Supreme  Court  has  indeed  on  more 

76United  States  v.  Foo  Duck,  172  Fed.  856. 

77United  States  v.  Yee  Wong  Yeun,  191  Fed.  28,  and  see  United  States 
v.  Foo  Duck,  172  Fed.  856. 

78United  States  v.  Foo  Duck,  163  Fed.  440. 

7»United  States  v.  Crouch,  185  Fed.  907. 


Status. 


371 


than  one  occasion  expressed  with  regard  to  the  purpose  of 
the  Chinese  exclusion  acts  a contrary  view.  While  Chinese 
persons  of  the  exempt  classes  are  under  the  obligation  of 
presenting  to  the  port  authorities  at  the  time  of  entrance 
a certificate  of  identity  duly  issued  by  their  government, 
an  equal  obligation  rests  upon  those  authorities  to  admit 
the  applicant  in  the  absence  of  evidence  indicating  that 
the  certificate  has  been  fraudulently  obtained.  In  other 
words  all  Chinese  except  those  of  the  laboring  class  are 
at  liberty  to  enter  and  remain  in  the  United  States  on 
presenting  the  credentials  required  by  law.  The  provision 
requiring  the  presentation  of  these  certificates  to  members 
of  the  exempt  classes  has  been  looked  upon  by  the  highest 
authority  as  an  aid  rather  than  an  obstacle  to  their  ad- 
mission. “The  certificate, ” says  the  Supreme  Court  in 
the  Lau  Ow  Bew  case,80  citing  a former  lower  court  de- 
cision with  approval,  “is  evidently  designed  to  facilitate 
proof  by  Chinese  other  than  laborers  coming  from  China 
and  desiring  to  enter  the  United  States,  that  they  are  not 
within  the  prohibited  class.  It  is  not  required  as  a means 
to  restrict  their  coming.  To  hold  that  such  was  its  pur- 
pose would  be  to  impute  to  Congress  a purpose  to  disre- 
gard the  stipulation  of  the  new  treaty  that  they  should  be 
allowed  to  go  and  come  of  their  own  free  will  and  accord.” 
And  in  cases  where  such  persons  were  not  in  a position 
to  obtain  the  certificate  they  have  been  allowed  to  enter 
without  it,  on  submitting  other  proof  of  their  vocational 
standing.81  It  is  true  that  the  burden  of  proof  of  the 
right  to  enter  is  on  the  Chinese  applicant  for  admission 
in  the  sense  that  he  cannot  enter  except  on  presentation 
of  the  proper  papers;  but  on  the  other  hand  the  law  pro- 
vides that  those  papers,  duly  executed,  issued,  and  pre- 
sented, constitute  evidence  of  his  right  to  enter  which  the 

80Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340. 

81Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340;  In  re 
Ah  Ping,  23  Fed.  329. 


372  The  Exclusion  and  Expulsion  of  Aliens. 


Government  must  overthrow  in  order  to  afford  justifica- 
tion for  his  exclusion. 

Irrespective,  however,  of  the  precise  purpose  of  the  pro- 
vision requiring  the  presentation  of  certificates  by  Chinese 
of  the  exempt  classes  the  fact  remains  that  they  can  enter 
only  on  the  presentation  of  the  certificate,  whereas  under 
the  immigration  acts  no  such  credentials  are  required  of 
alien  subjects  of  other  than  Mongolian  nations.  Under 
those  acts  the  test  of  admissibility  is  one  of  personal 
qualification,  irrespective  of  class — excepting  that  of  alien 
contract  laborers — and  the  only  cases  in  which  positive 
proof  of  eligibility  is  required  from  the  aliens  themselves 
are  those  of  aliens  whose  ticket  or  passage  has  been  paid 
for  with  the  money  of  another,  or  who  have  been  assisted 
by  others  to  come  to  this  country.  In  other  words,  evi- 
dence of  eligibility  under  the  exclusion  laws  must  be 
given  by  the  applicants  themselves,  while  under  the  immi- 
gration laws  evidence  of  ineligibility  must  be  found  by  the 
Government  in  order  to  justify  exclusion.  But  under  both 
sets  of  laws  a favorable  decision  by  the  immigrant  officers 
based  on  examination  at  the  time  of  entrance  it  is  necessary 
in  order  that  the  applicant  may  lawfully  acquire  a muni- 
cipal status  under  either. 

Acquisition  of  municipal  status  under  the  immigration 
act  means  simply  the  process  of  being  admitted  into  the 
United  States  after  examination  by  the  immigration  au- 
thorities in  accordance  with  the  provisions  of  law  and  the 
rules  and  regulations  of  the  Department  of  Commerce 
and  Labor.  Aliens  are  not  classified  for  the  purpose  of 
determining  their  eligibility  by  vocation,  but  by  mental, 
moral  or  physical  qualifications.  The  foreign  laborer, 
provided  that  he  does  not  come  to  the  United  States  under 
contract  to  perform  services  here,  is  as  free  to  enter  as  the 
foreign  merchant  or  financier;  and  the  disabilities  which 
would  bar  the  former,  would  be  equally  effective  to  forbid 
entrance  to  the  latter.  Under  the  Chinese  exclusion  acts 
the  Chinese  laborer  is  excluded  because  he  belongs  to  the 


Status. 


373 


laboring  class,  not  because  of  any  mental,  moral  or  phys- 
ical failing  which  would  make  him  an  undesirable  addi- 
tion to  our  national  community;  under  the  immigration 
statutes  the  alien  is  forbidden  entrance,  not  as  a member 
of  a class,  but  because,  as  an  individual,  he  may,  if  ad- 
mitted, prove  a menace  to  the  peace,  health,  or  prosperity 
of  the  people  of  the  United  States.  In  short,  the  Chinese 
exclusion  acts  constitute  legislation  directed  against  a 
class;  the  immigration  law,  legislation  against  the  indi- 
vidual. 

This  being  so,  it  necessarily  follows  that  the  doctrine 
of  communicated  status  so  fully  recognized  in  the  appli- 
cation of  the  exclusion  laws  has  no  place  in  the  immigra- 
tion law.  Under  the  former  the  only  tests  of  eligibility 
are  membership  in  the  exempt  classes  and  the  presenta- 
tion of  the  special  kind  of  proof  of  such  membership  as  is 
required  by  law.  The  wives  and  minor  children  of  exempt 
Chinese  lawfully  admitted  to  residence  in  this  country, 
seeking  admission  by  virtue  of  that  relationship  to  one 
whose  right  to  enter  has  already  been  proven,  are  ad- 
mitted— not,  to  be  sure,  on  the  claim  that  they  as  indi- 
viduals are  members  of  a class  specifically  designated  as 
exempt  from  exclusion  by  the  treaty — but  merely  because 
the  nature  of  the  relationship  shown,  in  connection  with 
the  personal  status  of  the  husband  or  father  is  such  as 
to  negative  the  idea  that  the  applicants  could  belong  to 
the  laboring  class.  This  being  so,  and  since  the  wife  or 
minor  child  as  such  are  unable  to  obtain  the  certificate  on 
the  presentation  of  which  alone  members  of  the  exempt 
classes  can  be  admitted  under  the  Act  of  1882,  the  right 
of  the  husband  and  father,  duly  established  as  such  mem- 
ber, is  held  to  be  communicated  to  the  wife  or  minor  child. 

Under  the  immigration  law,  however,  the  right  of  the 
alien  husband  and  father  to  enter  is  based,  not  on  the 
fact  that  he  belongs  to  a class  in  itself  exempt  from  exclu- 
sion, but  simply  because,  as  an  individual,  he  has  been 
found  to  be  free  from  disabilities  which  operate  to  ex- 


374  The  Exclusion  and  Expulsion  of  Aliens. 


elude.  It  is  plain  that  where  a right  is  based  solely  on 
absence  in  the  individual  of  mental,  moral,  or  physical 
defects  such  a right,  based  as  it  is  on  the  existence  of  a 
condition  exclusively  peculiar  to  a given  person,  is  inca- 
pable of  transmission  to  another,  precisely  because  of  the 
fundamental  difference  between  individuals. 

But,  although  as  between  aliens  the  marital  or  parental 
relationship  cannot,  for  the  reasons  stated,  give  rise  to  a 
communicated  status  based  on  rights  acquired  by  the  alien 
husband  or  father  who  has  entered  the  United  States,  it 
plays  nevertheless  a most  important  part  in  questions  of 
the  admissibility  under  the  immigration  law  of  persons  of 
foreign  birth.  The  laws  of  the  United  States  provide  that 
alien  women  who  marry  citizens  of  the  United  States  be- 
come thereby  citizens  of  this  country,  and  that  under 
certain  conditions  the  naturalization  of  the  father  vests 
his  children  with  the  attribute  of  American  citizenship 
which  he  himself  has  assumed.  No  question  can,  of  course, 
arise  as  to  the  exemption  of  all  American  citizens  from 
the  operation  and  effects  of  the  immigration  laws;  but 
considerable  doubt  has  of  late  been  expressed  as  to  whether 
or  not  those  laws  apply  to  women  of  foreign  extraction 
who,  possibly  for  the  purpose  of  exempting  themselves 
from  the  operation  of  the  act,  marry  American  citizens  at 
a time  when  as  aliens,  they  could  not,  by  reason  of  some 
disability  which  would  afford  a ground  for  their  exclusion 
or  expulsion,  claim  the  right  to  enter  or  remain  in  the 
United  States.  Indeed,  some  of  recent  decisions  have 
gone  so  far  as  to  hold  that  alien  women  who  cannot  claim 
this  right  are  not  “capable  of  naturalization”  under  the 
citizenship  or  naturalization  laws  of  the  United  States, 
and  that  a marriage  contracted  with  an  American  citizen 
during  the  existence  of  a disability  cannot  vest  them  with 
United  States  citizenship.  The  possibility  of  such  a ques- 
tion arising  in  connection  with  the  Chinese  exclusion 
acts  is  precluded  by  the  fact  that  Chinese  cannot  be  nat- 
uralized under  the  Constitution  and  laws  of  this  country. 


Status. 


375 


Moreover,  no  question  of  the  communication  of  status  is 
raised  under  the  immigration  acts  in  considering  the  right 
of  such  women  or  children  of  foreign  extraction  to  enter 
cr  remain  in  the  United  States.  As  already  stated,  per- 
sonal qualification  is  not  a communicable  element.  The 
rights  of  such  persons  depend  solely  on  whether  or  not 
they  are  citizens  of  the  United  States,  and  this  in  turn 
depends  on  whether  the  pertinent  provisions  of  the  immi- 
gration acts  are  to  be  read  in  pari  materia  with  the  laws 
governing  the  acquisition  of  citizenship  by  persons  of  for- 
eign birth. 

The  question  of  the  effects  of  the  acquisition  of  a com- 
mercial domicile  by  Chinese  of  the  exempt  class  on  their 
right  to  enter  or  to  remain  in  the  United  States  has  al- 
ready been  discussed82  in  connection  with  the  effect  of  the 
Act  of  August  18,  1894  upon  rights  claimed  under  the 
Chinese  exclusion  laws.  That  act  provided  that  the  ex- 
cluding decision  of  the  Secretary  of  the  Treasury — now  of 
the  Secretary  of  Commerce  and  Labor — should  be  final 
with  respect  to  the  right  of  any  alien  to  enter  this  country 
who  might  seek  admission  under  any  law  or  treaty.  As 
no  Chinese  person — except  diplomatic  officers  and  their 
suites — can  lawfully  enter  the  United  States  except  under 
rights  conferred  by  treaty,  the  Act  of  1894  necessarily 
included  all  Chinese  persons  other  than  those  above  desig- 
nated in  its  provisions.  Not  so  with  regard  to  aliens  gen- 
erally. Until  the  Act  of  March  3,  1903,  went  into  effect 
it  was  universally  held  by  the  courts  that  the  excluding 
provisions  of  the  immigration  acts  did  not  apply  to  aliens 
not  coming  to  the  United  States  for  the  first  time,  but  for 
the  purpose  of  resuming  a domicile  already  lawfully  ac- 
quired. Since  the  passage  of  that  act  there  has  been  a 
division  of  judicial  opinion  on  this  point,  the  grounds 
of  which  will  be  considered  in  detail  in  subsequent 
pages.82a  The  real  question  at  issue  in  this  connection  is 

82 Ante,  p.  357. 

82a Post,  p.  427. 


376  The  Exclusion  and  Expulsion  of  Aliens. 

not  whether  a lawful  domicile  previously  acquired  re- 
moves the  alien  from  the  operation  of  the  excluding  pro- 
visions of  a law  to  which,  in  the  absence  of  such  domicile, 
he  would  have  been  in  terms  subjected,  but  whether  it  was 
the  intention  of  Congress  to  exclude  aliens  who  have  al- 
ready lawfully  established  their  homes  in  this  country — 
in  short,  whether  aliens  already  lawfully  domiciled  in  the 
United  States  and  who  return  here  from  a visit  abroad  are 
seeking  to  enter  or  to  return  “under  any  law  of  the  United 
States.” 

(B.)  Through  the  Acquisition  of  American  Citizenship. 

Acquisition  of  municipal  status  under  the  immigra- 
tion law  is,  of  course,  possible  only  to  those  who  on  seek- 
ing to  enter  the  United  States,  are  subject  to  the  pro- 
visions of  that  law.  Aliens  who  have  been  admitted  to 
this  country  through  the  favorable  decision  of  the  proper 
immigration  officers  can  be  said  to  have  acquired  a muni- 
cipal status,  by  virtue  of  the  operation  of  those  laws,  but, 
if  through  one  cause  or  another  an  alien  has  from  any 
other  legitimate  source  acquired  the  right  to  enter  and 
reside  in  the  United  States  the  immigration  acts  are  not 
applicable  to  him,  and  the  municipal  status  which  he  ac- 
quires on  entering  the  country  exists  independent  of  any 
provision  of  the  special  statute  governing  the  admission 
of  aliens.  This  principle  is  generally  conceded. 

As  the  immigration  act  purports  to  include  in  its  opera- 
tion all  aliens,  or  at  least  all  aliens  seeking  to  “enter”  the 
United  States,  a status  which  will  exempt  persons  seeking 
tc  enter  from  the  operation  thereof  must  be  incompatible 
with  the  condition  of  alienage.  It  is  conceded  that  persons 
not  aliens  in  the  sense  of  the  immigration  act  are  not  sub- 
ject to  its  provisions.83  Since  it  is  admitted  that,  generally 
speaking,  citizenship  acquired  by  naturalization  or  mar- 

83Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130;  Gonzales  v. 
Williams,  192  U.  S.  1,  48  Law  Ed.  317. 


Status. 


377 


riage  removes  the  person  claiming  it  from  the  operation 
of  the  immigration  laws,  and  that  citizenship  may  he  ac- 
quired by  this  process,  why  is  it,  when  there  is  no  dispute 
as  to  the  actual  facts  on  which  the  right  to  enter  is  based, 
that  the  Department  of  Commerce  and  Labor  takes  the 
view,  and  the  courts  have  more  than  once  held  that  such 
persons  are  subject  to  the  operation  of  those  laws? 
Merely  because  it  is  contended  that  granting  that  condi- 
tions may  exist  under  which  citizenship  may  be  acquired 
by  aliens,  they  cannot  exist  when  at  the  time  the  resulting 
exempting  status  is  ought  to  be  established  the  person  de- 
siring to  acquire  it  is  suffering  from  disabilities  which,  if 
an  alien,  would  render  him  excludable  under  the  provi- 
sions of  the  act. 

With  certain  rare  exceptions,  noted  later,84  the  only 
political  status  other  than  alienage  known  to  our  law  is 
citizenship.  This  can  be  acquired  in  one  of  two  ways,  by 
naturalization  or  marriage ; for,  citizenship  resulting  from 
the  fact  of  birth  cannot  be  said  to  be  “acquired.”  The 
question  to  be  determined,  then,  is  how  far,  if  at  all, 
rights  claimed  by  virtue  of  naturalization  or  marriage  to 
an  American  citizen  are  affected  by  the  provisions  of  the 
immigration  law;  in  other  words,  under  what  circum- 
stances, if  any,  aliens  giving  proof  of  the  existence  of  a 
state  of  facts,  which  under  the  general  laws  of  the  United 
States  dealing  with  the  subject,  ordinarily  gives  rise  to 
a change  in  political  status,  are  subject  to  the  operation 
of  the  immigration  laws. 

(1.)  By  Naturalization. 

The  right  of  aliens  to  acquire  citizenship  in  the  United 
States  is  purely  statutory,85  “The  fourteenth  amendment 
of  the  Constitution,”  says  Mr.  Justice  Gray,  speaking  for 
the  court,  in  the  case  of  United  States  v.  Wong  Kim  Ark, 

s^That  occupied  by  natives  of  Porto  Rico  and  the  Philippines. 

ssFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905; 
United  States  v.  Rodgers,  185  Fed.  334. 


378  The  Exclusion  and  Expulsion  of  Aliens. 


“in  the  declaration  that  ‘all  persons  born  or  naturalized  in 
the  United  States  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  state  wherein 
they  reside*  contemplates  two  sources  of  citizenship,  and 
two  only:  birth  and  naturalization.  Citizenship  by  nat- 
uralization can  only  be  acquired  by  naturalization  under 
the  authority  and  in  the  forms  of  law.  But  citizenship 
by  birth  is  established  by  the  mere  fact  of  birth  under 
the  circumstances  defined  in  the  Constitution.  Every 
person  born  in  the  United  States  and  subject  to  the  juris- 
diction thereof  becomes  at  once  a citizen  of  the  United 
States  and  needs  no  naturalization.  A person  born  out 
of  the  jurisdiction  of  the  United  States  can  only  become 
a citizen  by  being  naturalized  either  by  treaty,  as  in  the 
case  of  the  annexation  of  foreign  territory;  or  by  author- 
ity of  Congress,  exercised  either  by  declaring  certain 
classes  of  persons  to  be  citizens,  as  in  the  enactments  con- 
ferring citizenship  upon  foreign-born  children  of  citizens 
or  by  enabling  foreigners  individually  to  become  citizens 
by  proceedings  in  the  judicial  tribunals,  as  in  the  ordinary 
provisions  of  the  naturalization  acts.** 86 

When  the  claim  to  admission  is  based  on  citizenship, 
either  as  the  necessary  result  of  birth  in  this  country  or 
acquired  by  any  one  of  the  different  processes  of  naturali- 
zation, the  facts  being  admitted,  the  political  effect  of 
those  facts  or  combinations  of  facts  generally  involves  no 
question  of  immigration  law.  In  ordinary  cases,  only  one 
question  presents  itself  to  the  solution  of  the  immigration 
officers — whether  or  not  the  person  presenting  himself  for 
admission  is  personally  qualified  under  the  immigration 
law  to  enter.  If  found  to  be  suffering  from  disabilities 
which  operate  to  exclude,  the  applicant  is  without  more 
assigned  for  deportation.  But  it  frequently  occurs 
that,  granting  the  existence  of  disabilities  which  would 
be  fatal  to  his  admission  if  an  alien,  the  claim  is  made 

86United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  42  Law  Ed.  890. 


Status. 


379 


that  the  applicant  is  a citizen  of  the  United  States,  sup- 
ported by  allegation  of  the  existence  of  facts  from  which 
the  political  status  of  citizenship  purports  to  result.  This 
raises  at  once  a new  issue  of  fact — that  is,  whether  the 
facts  from  which  the  exempting  status  is  alleged  to  result 
are  as  represented.  This  question  being  decided  by  the 
examining  officers  in  the  affirmative,  there  remains  only 
the  pure  question  of  law  as  to  whether  the  political  results 
of  those  acts  is  American  citizenship;  and  this  would 
seem  to  depend  wholly  on  those  laws  of  the  United  States 
which  designate  how  and  when  American  citizenship  can 
be  acquired. 

The  naturalization  of  an  alien  changes  his  political 
status  from  that  of  alienage  to  citizenship  and  may  af- 
fect the  political  condition  of  his  wife  and  minor  children. 
As  regards  the  alien  himself,  his  naturalization  is,  of 
course,  sufficient  to  remove  him  from  the  operation  of 
the  act,  but  the  mere  declaration  of  intention  does  not 
change  his  political  status  of  alien  to  that  of  citizen.87 
The  fact  of  naturalization  being  shown,  the  applicant 
must  be  admitted  as  a matter  of  course,  not  because  he  has 
proven  his  right  to  admission  under  the  immigration  acts 
but  because  he  has  shown  that  immigration  officers  have 
no  jurisdiction  over  him  whatsoever. 

All  such  cases  necessarily  involve  no  question  of  the 
acquisition  of  a municipal  status  under  the  immigration 
law,  but,  on  the  contrary,  the  proof  of  a political  status 
which  places  the  party  beyond  the  reach  of  the  provisions 
of  that  law. 

(a.)  Effect  of  the  Naturalization  of  the  Father  on  His 
Minor  Children. 

Section  1993  Revised  Statutes88  provides  that  “all  chil- 
dren heretofore  born  or  hereafter  born  out  of  the  limits 

87  In  re  Kleibs,  128  Fed.  656;  In  re  Moses,  83  Fed.  995;  Maloy  v.  Duden, 
25  Fed.  673;  Sanz  v.  Randall,  4 Dill.  425. 

88Aet  February  10,  1885,  c.  71,  st.  1,  vol.  10,  p.  604. 


380  The  Exclusion  and  Expulsion  of  Aliens. 

/ 

and  jurisdiction  of  the  United  States  whose  fathers  were 
or  may  be  at  the  time  of  their  birth  citizens  thereof  are 
declared  to  be  citizens  of  the  United  States ; but  the  rights 
of  citizenship  shall  not  descend  to  children  whose  fathers 
never  resided  in  the  United  States.”  This  provision  ap- 
plies with  equal  force  to  the  children  of  native-born  and 
naturalized  citizens.  That  they  are  to  be  considered  Amer- 
ican citizens  has  been  judicially  determined  even  though 
the  parents  are  permanently  residing  abroad;89  and  the 
same  result  is  bound  to  follow  where  the  residence  is  tem- 
porary.90 Section  2172  of  the  Revised  Statutes91  provides 
that  “the  children  of  persons  who  have  been  duly  natural- 
ized under  any  law  of  the  United  States — being  under  the 
age  of  twenty-one  years  at  the  time  of  the  naturalization 
of  their  parents  shall,  if  dwelling  in  the  United  States, 
be  considered  as  citizens  thereof;”  and  section  5 of  the 
Act  of  March  2,  1907, 92  provides  “that  a child  born  with- 
out the  United  States  of  alien  parents  shall  be  deemed  a 
citizen  of  the  United  States  by  virtue  of  the  naturalization 
of  or  resumption  of  American  citizenship  by  the  parent: 
Provided , That  such  naturalization  or  resumption  takes 
place  during  the  minority  of  such  child : And  provided 
further , That  the  citizenship  of  such  minor  child  shall 
begin  at  the  time  such  minor  child  begins  to  reside  per- 
manently in  the  United  States.” 

It  has  always  been  admitted  that  the  naturalization  of 
the  father  results  in  the  naturalization  of  a minor  child 
provided  that  the  child  has  been  at  the  time  and  subse- 
quent to  the  naturalization  of  the  father,  and  during  its 
minority,  a resident  of  this  country.93  But  until  naturali- 

89See  Oldtown  v.  Bangor,  1870,  58  Me.  353. 

soSasportas  v.  De  la  Motta,  1858,  10  Kich.  Eq.  38. 

»iAct  April  14,  1902,  ch.  28,  sec.  2,  vol.  4,  p.  155. 

9234  Stats.  1228. 

93Campbell  v.  Gordon,  1809,  6 Cranch  176,  183;  In  re  Morrison,  1861, 
22  How.  Pr.  99;  People  v.  McNally,  1880,  59  Howard  Pr.  500;  State  v. 
Mins,  1879,  26  Minn.  183;  Prentice  v.  Miller,  1890,  82  Cal.  570;  Dorsey  v. 
Brigham,  1898,  177  111.  250. 


Status. 


381 


zation  is  complete  no  power  to  confer  it  upon  the  child 
can  exist  in  the  father.  Therefore,  the  mere  declaration 
of  intention,  incomplete  in  itself  to  vest  the  father  with 
citizenship,  cannot  change  the  existing  political  status 
of  the  minor  child.94  Thus  it  was  held  in  the  case  of 
In  re  Moses95  that  the  wife  and  children  of  an  alien  who 
had  been  admitted  into  the  United  States  and  had  estab- 
lished his  domicile  here  could  not  prove  their  exemption 
from  the  operation  of  the  immigration  act  by  showing 
that  the  father  had  done  no  more  toward  acquiring  Amer- 
ican citizenship  than  to  file  his  declaratory  oath  under  the 
naturalization  statute.  But  even  if  he  had  become  a 
citizen,  his  children  not  having  dwelt  in  the  United  States, 
could  not  have  successfully  urged  their  claim  to  citizen- 
ship. That  alien  minors  who  have  never  dwelt  in  this 
country  cannot  claim  exemption  from  the  operation  of 
the  immigration  laws  through  the  naturalization  of  their 
father  was  decided  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  Zartarian  v.  Billings.96  There  a 
former  Turkish  subject  became  naturalized  in  1896,  and 
some  years  after  his  naturalization  sent  for  his  wife  and 
minor  children  to  join  him  in  this  country.  The  daughter 
was  found  to  be  afflicted  with  trachoma,  which,  under  the 
Immigration  Act  of  March  3, 1903,  excluded  her  as  an  alien 
from  admission.  It  was  contended  that  the  immigration  act 
had  no  application  to  her,  as  by  the  naturalization  of  the 
father,  she  herself  became  naturalized ; but  the  court  held 
that,  being  born  abroad,  a native  of  Turkey,  the  applicant 
could  not  become  a citizen  of  the  United  States  except  in 
compliance  with  the  terms  of  section  2172  of  the  Revised 
Statutes;  that,  never  having  legally  landed  in  the  United 
States,  she  could  of  course  never  have  dwelt  here  and, 
never  having  dwelt  here,  did  not  come  within  the  terms 

94Henry  v.  Hull,  1892,  6 N.  Mexico  643,  660;  In  re  Conway,  1863,  17 
Wis.  526. 

9583  Fed.  995. 

96204  U.  S.  170,  51  Law  Ed.  428. 


382  The  Exclusion  and  Expulsion  of  Aliens. 

of  the  statute.  Her  right  to  entry  was  then  bound  to  be 
based  on  her  qualifications  as  an  alien;  and  these  failing 
to  meet  the  requirements  of  the  immigration  act,  no  right 
to  enter  could  exist.  The  applicant  was  at  a peculiar  dis- 
advantage since  her  passport  had  been  granted  her  by 
the  Turkish  authorities  on  the  condition  that  she  could 
never  return  to  Turkey.  She  was  ordered  deported,  but 
as  Mr.  Van  Dyne  observes,  “at  this  juncture  the  doctors 
at  the  hospital  pronounced  her  cured,  the  Department  of 
Commerce  and  Labor  issued  an  order  for  her  release,  and 
she  was  allowed  to  join  her  parents.”  97  The  conclusion 
reached  by  the  Supreme  Court  had  already  been  enunci- 
ated by  the  Circuit  Court  of  Appeals,98  and  the  principles 
leading  thereto  have  since  been  invoked  and  applied  by 
the  Federal  courts  on  more  than  one  occasion  in  connec- 
tion with  their  application  to  the  immigration  law.99 
Conversely,  it  has  been  held  that  when  the  father  of  an 
alien  minor  child  becomes  a naturalized  citizen,  the  child, 
if  dwelling  in  the  United  States  at  or  after  the  naturaliza- 
tion of  the  father,  is  not  subject  on  re-entry  to  the  jurisdic- 
tion of  immigration  officers.100  It  follows,  a fortiori,  from 
the  doctrine  laid  down  in  the  Zartarian  case,  that  if  the 
naturalization  of  the  father  cannot  vest  his  minor  child 
who  has  never  yet  lived  in  this  country  with  a status 
which  exempts  him  from  the  operation  of  the  act,  the  mere 
declaration  of  intention  by  the  father  is  powerless  to  do 
so.  It  was  so  held  in  a comparatively  early  Federal  de- 
cision,1 and  the  contrary  opinion  expressed  in  a later  case2 
cannot,  it  would  seem,  be  regarded  any  longer  as  an  au- 
thority. 

97Van  Dyne  on  Naturalization,  207. 

ssUnited  States  v.  Williams,  132  Fed.  895. 

ssUnited  States  v.  Rodgers,  182  Fed.  274 ; United  States  v.  Rodgers,  185 
Fed.  334. 

looXJnited  States  ex  rel.  Fisher  v.  Rodgers,  144  Fed.  711. 

i In  re  Moses,  83  Fed.  995. 

2/?i  re  Di  Simone,  108  Fed.  942;  reversed  on  confession  of  error. 


Status. 


383 


(b.)  Effect  of  Naturalization  of  the  Husband  on  the  Wife. 

Section  1994  of  the  Revised  Statutes3  provides  that 
“any  woman  who  might  lawfully  be  naturalized  under  the 
existing  laws,  married,  or  who  shall  be  married  to  a citizen 
of  the  United  States,  shall  be  deemed  and  taken  to  be  a 
citizen.” 

Where  the  fact  of  marriage  to  an  American  citizen  is 
made  the  basis  of  the  claim  to  enter,  the  first  question  to 
be  determined  by  the  immigration  authorities  is  whether 
the  marital  status  actually  exists  as  represented.  The 
mere  perfunctory  performance  of  the  marriage  ceremony 
entered  into  for  the  sole  purpose  of  evading  immigration 
or  exclusion  acts  means  nothing ; there  must  be  a bona  fide 
marriage  between  the  parties.  Whether  such  a relation- 
ship exists  is  a pure  question  of  fact  to  be  finally  deter- 
mined by  the  administrative  officers ; and  if  they  find  that 
the  marriage  was  a sham,  exclusion  or  expulsion  will 
result  as  a matter  of  course.4  Again,  if  the  marriage 
would  be  held  void  on  grounds  of  public  policy  if  per- 
formed in  the  United  States,  the  fact  that  it  was  legal  in 
the  jurisdiction  where  the  relationship  was  originally 
entered  into  cannot  avail  the  parties.  Thus,  where  a 
former  Russian  subject  who,  as  a naturalized  American 
citizen,  returned  to  Russia,  there  contracted  a marriage 
with  his  niece,  and  returned  to  the  United  States  with  the 
woman  and  an  idiot  child,  the  court  held  that  the  marriage 
relation,  being  incestuous  and  absolutely  void  by  the  laws 
of  the  state  at  the  port  of  which  the  parties  presented 
themselves  for  admission,  could  afford  no  ground  on  which 
to  base  the  right  to  enter.5 

Again,  where  naturalization  by  marriage  is  urged  as 
against  the  right  of  the  state  to  exclude  under  the  immi- 

3Act  February  10,  1855,  c.  71,  s.  2,  vol.  10,  p.  604. 

<Looe  Shee  v.  North,  170  Fed.  566;  United  States  v.  Sprung,  187  Fed. 
903;  Wong  Heung  v.  Elliott,  179  Fed.  110. 

^United  States  v.  Eodgers,  109  Fed.  886. 


384  The  Exclusion  and  Expulsion  of  Aliens. 

gration  laws,  it  is  plain  that  the  woman  claiming  citizen- 
ship must  come  within  the  terms  of  the  naturalization 
statute  in  order  to  benefit  by  its  provisions.  Since,  at  no 
time  have  persons  of  Chinese  nationality  been  capable  of 
lawful  naturalization  under  the  laws  of  the  United  States,6 
it  has  been  held  that  the  claims  of  Chinese  women  to  enter 
or  remain  in  this  country  based  on  the  acquisition  of 
American  citizenship  by  marriage  to  American  citizens 
cannot  affect  the  right  of  the  Government  to  exclude  or 
expel  them  as  aliens  in  accordance  with  the  provisions 
of  the  exclusion  or  immigration  laws.7  There  can  be  no 
question,  however,  that  a Chinese  woman  who  marries  a 
citizen  of  this  country  and  makes  the  United  States  her 
homes  acquires  through  the  fact  of  her  husband’s  citizen- 
ship all  the  rights,  exclusive  of  those  of  a political  nature, 
which  he  himself  enjoys.8  It  may  be  added  that  there 
seems  to  be  good  ground  for  believing  that,  should  an 
American  citizen  during  a visit  to  China  marry  a Chinese 
lady  and  return  with  her  as  his  bride  to  his  home  in  the 
United  States,  she  would  not,  on  account  of  her  foreign 
origin,  be  excluded  either  under  Chinese  exclusion  acts 
or  on  grounds  of  personal  disability  under  the  immigra- 
tion act.  To  impute  to  the  treaty-making  power  or  Con- 
gress the  intention  to  exclude  Chinese  wives  of  American 
citizens  would  be  absurd;  and  the  Supreme  Court  has  al- 
ready held  in  the  Gonzalez  case9  that  allegiance,  in  the 
sense  of  being  subject  to  the  national  control  of  the  United 
States,  can  exist  without  citizenship;  and  that  persons 
owing  allegiance  to  the  United  States  are  not  aliens  in  the 
sense  that  the  term  is  used  in  the  immigration  acts.  An 
American  citizen  is  at  liberty  to  marry  whomsoever  he 

eSee  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  L.  Ed.  905; 
United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  42  Law  Ed.  890;  In  re 
Gee  Hop,  71  Fed.  274. 

?Wong  Heung  v.  Elliott,  179  Fed.  110;  Looe  Shee  v.  North,  170  Fed.  566. 

sTsoi  Sim  v.  United  States,  116  Fed.  920. 

^Gonzalez  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 


Status. 


385 


will ; and  while  naturalization  is  a personal  privilege,10  the 
principle  that  the  wife’s  allegiance  follows  that  of  her  hus- 
band, particularly  where  she  voluntarily  submits  herself 
to  the  laws  of  the  state  of  his  residence,  will  not  lightly 
be  denied.10a 

Granted  that  a bona  fide  marriage  has  taken  place  as 
between  the  parties — that  the  marriage  is  such  as  is  coun- 
tenanced by  our  laws,  and  that  in  so  far  as  the  particular 
case  is  covered  by  the  laws  of  the  United  States,  above  set 
out,  dealing  exclusively  with  the  acquisition  by  marriage 
of  citizenship  by  women  of  alien  extraction  the  applicant 
is  one  “who  might  herself  be  naturalized”  by  virtue  of 
such  marriage — it  would  seem  that  the  status  resulting 
from  the  state  of  facts  and  law  above  set  out  would  be 
such  as  to  exempt  the  applicant  from  the  operation  of  the 
immigration  acts.  The  precise  question  is,  however,  still 
left  open.  Three  different  views  have  been  expressed : 
First,  that  the  marriage  of  an  alien  woman  to  an  Amer- 
ican citizen,  native  born  or  naturalized,  ipso  facto  vests  her 
with  American  citizenship  and  exempts  her  from  the 
operation  of  the  immigration  statutes.  Second,  that  citi- 
zenship cannot  be  acquired  by  virtue  of  the  marriage 
relationship  unless  the  wife  is  a resident  of  the  United 
States.  Third,  that  the  fact  of  such  a marriage  cannot 
operate  to  divest  the  application  of  the  immigration  law 

10 White  V.  White,  1859,  2 Met.  (Ky.)  185,  191. 

ioaIn  the  very  recent  case  of  Suey  et  al.  v.  Backus,  decided  by  the  Su- 
preme Court  of  the  United  States  June  7,  1912,  the  facts  were  that  a Chinese 
woman  married  a citizen  of  this  country,  came  here,  gave  birth  to  a child  in 
wedlock,  but  subsequently  entered  a house  of  prostitution.  The  court  con- 
ceded her  right  to  enter  and  remain  in  the  United  States  as  the  wife  of  an 
American  citizen,  but  held  that,  being  incapable  of  being  naturalized  she 
remained  an  alien,  and  that  her  right  to  enter  or  remain  was  subject  to  for- 
feiture by  the  commission  of  improper  acts  which  constituted  a violation 
of  the  immigration  statutes.  Incidentally  the  decision  shows  that  citizen- 
ship cannot  be  the  result  of  a communicated  status,  and  that  the  rights  in- 
cident to  such  status  may  be  lost  by  the  act  of  the  beneficiary  as  well  as 
by  the  cessation  of  the  original  status  held  by  the  person  from  whom  the 
rights  flow. 


386  The  Exclusion  and  Expulsion  of  Aliens. 


when  the  woman  would  otherwise  be  excludable  there- 
under, irrespective  of  whether  she  is  or  is  not  a resident  of 
the  United  States. 

On  the  first  point,  the  weight  of  authority  tends  to  the 
view  that  the  fact  of  marriage  takes  the  case  beyond  the 
scope  of  the  immigration  authorities.11  The  principle  in- 
volved in  the  second  was  enunciated  by  way  of  dicta , the 
issue  being  the  granting  of  naturalization  papers  to  an 
alien  whose  wife  had  never  resided  in  this  country 
and  who  was  excludable  under  the  immigration  act.12 
In  applying  the  principle  expressed  in  the  third  view  the 
court  was  apparently  influenced  by  the  conviction  that  the 
marriage  although  bona  fide  and  performed  when  both 
parties  were  within  the  territorial  limits  of  the  United 
States  was  consummated  for  the  purpose  of  avoiding  the 
operation  of  the  immigration  law.13  On  this  point  the  de- 
cision is,  however,  in  direct  conflict  with  an  earlier  opinion 
rendered  in  the  second  Federal  Circuit  to  the  effect  that 
where  an  alien  woman  of  French  extraction  while  in  de- 
tention pending  deportation  married  an  American  citizen, 
she  was  ipso  facto  entitled  to  her  release,  or  in  case  of 
refusal,  to  her  immediate  discharge  on  habeas  corpus  by 
virtue  of  her  acquisition  of  American  citizenship.14 

The  conflicting  opinions  expressed  by  the  courts  in  the 
first  two  views  above  set  out  are  merely  the  result  of  two 
opposing  interpretations  of  the  laws  of  the  United  States 
providing  for  the  acquisition  of  citizenship  by  persons  of 
foreign  extraction,  and  do  not  involve  a consideration  of 
the  effect  upon  those  laws,  if  any,  of  the  excluding  pro- 
visions of  the  immigration  act.  The  third  view  is  based 

nUnited  States  v.  Sprung,  187  Fed.  903,  in  dissenting  opinion,  but  ma- 
jority did  not  pass  on  this  point,  holding  that  marriage  was  colorable; 
In  re  Nicola,  184  Fed.  323 ; Hopkins  v.  Fachant,  130  Fed.  839 ; Wo ey  Ho  v. 
United  States,  109  Fed.  888. 

12 In  re  Kustigian,  165  Fed.  980. 
i32ta  parte  Kaprielian,  188  Fed.  694. 
i^Hopkins  v.  Fachant,  supra. 


Status. 


387 


on  the  assumption  that  the  laws  dealing  with  the  ac- 
quisition of  American  citizenship  do  not  of  themselves 
cover  the  subject  and  that  whether  or  not,  in  a given  case, 
United  States  citizenship  has  been  acquired  depends  on 
whether  the  person  claiming  to  have  acquired  it  was  quali- 
fied, under  the  immigration  act,  to  enter  or  remain  in  the 
United  States;  and  this  view  appears  to  be  shared  by  the 
court  which  announced  the  principle  that  a woman  of 
foreign  origin  who  has  not  or  is  not  residing  in  this  coun- 
try cannot  acquire  United  States  citizenship  by  marriage 
to  an  American  citizen.15  There  the  court  said : “It  is  no 
part  of  the  intended  policy  of  section  1994, 16  or  of  the 
naturalization  laws,  that  they  should  annul  or  override 
the  immigration  laws.”  And  again:  “The  immigration 

acts  have added  to  the  classes  of  persons  who  are 

incapable  in  their  own  right  of  naturalization.  It  is  not 
enough  under  existing  law  that  the  applicant  for  admis- 
sion to  the  country  be  a Tree  white  person.’  She  must 
also  be  a person  not  within  the  classes  excluded  by  the 
immigration  laws.”  And  later:  “If,  however,  it  was  the 
intention  of  Congress  in  enacting  section  1994  to  confer 
citizenship  upon  any  person  who  has  never  been  within 
the  territorial  jurisdiction  of  the  United  States,  it  seems 
entirely  unreasonable  to  hold  that  it  was  the  intention  of 
Congress  to  confer  American  citizenship  upon  an  alien 
who  is  excluded  by  the  immigration  acts  from  admission 
to  the  country.”  The  question  before  the  court  was,  how- 
ever, simply  whether  it  should  grant  the  application  for 
citizenship  of  an  alien  whose  wife  was  at  that  time  at- 
tempting to  enter  the  United  States  but  disqualified  under 
the  provisions  of  the  immigration  act ; and  the  court  stated 
in  its  decision  that  it  was  exceedingly  doubtful  if  the 
petitioner  who  seeks  to  bring  into  this  country  a person 
with  a dangerous  contagious  disease  can  meet  the  require- 

In  re  Rustigian  165  Fed.  980. 
i6United  Statess  Comp.  St.  1901,  1268. 


388  The  Exclusion  and  Expulsion  of  Aliens. 


ment  of  the  naturalization  act17  and  make  it  appear  to  the 
satisfaction  of  the  court  that  he  is  well  disposed  to  the 
good  order  and  happiness  of  the  United  States.”  In 
reality  no  question  of  immigration  law  was  involved  in 
the  case ; the  one  point  to  be  decided  was  whether,  in  view 
of  the  existing  circumstance,  the  petition  for  citizenship 
should  be  granted;  and  the  court,  being  apparently  of 
the  opinion  that  to  grant  the  petition  might  result  dis- 
advantageous^ to  the  national  community,  refused,  in  the 
discretion  vested  in  it  by  law,  to  do  so. 

The  contention  of  those  courts  opposed  to  the  general 
view  is,  in  a word,  that  citizenship  cannot  be  acquired  by 
marriage  by  a woman  of  foreign  extraction  (1)  where  she 
has  never  been  a resident  of  this  country  (2)  where  she  is 
excludable  under  the  immigration  laws. 

a.  Residence  of  Wife  in  This  Country. 

Where  the  sole  claim  of  the  right  to  enter  is  citizenship, 
and  the  applicant  is  excluded  on  the  ground  that,  not 
having  resided  in  the  United  States,  she  cannot  have  be- 
come a citizen,  the  legal  question  raised,  as  before  stated, 
is  purely  one  involving  the  principles  of  the  laws  of  citi- 
zenship and  naturalization.  As  already  intimated  where 
the  courts  have  had  occasion  to  pass  upon  this  point,  di- 
rectly or  by  unavoidable  inference,  in  connection  with  the 
jurisdiction  of  the  immigration  authorities  over  women 
of  foreign  birth  seeking  admission  to  the  United  States, 
the  weight  of  authority  is  that  no  such  jurisdiction  exists. 
But  in  order  to  suggest  a satisfactory  conclusion  it  is 
necessary  to  go  beyond  the  field  of  those  decisions,  deal- 
ing primarily  with  questions  peculiar  to  the  immigration 
laws,  and  examine  the  trend  of  judicial  opinion  the  ob- 
ject of  which  was  to  interpret  those  acts  of  Congress  by 
virtue  of  which  alone  alien  women  are  enabled  to  acquire 
citizenship  by  marriage  with  citizens  of  this  country.  In 

i7Act  June  29,  1906,  c.  3592,  s.  4,  par.  4,  "34  Stat.  598;  U.  S.  Comp.  St. 
Supp.  1907,  p.  4227. 


Status. 


389 


the  Rustigian  case,  the  court  said:  “It  is  difficult  to 
justify  an  interpretation  of  section  1994  which  makes  it 
applicable  outside  the  territorial  jurisdiction  of  the  United 
States  and  which  attributes  to  Congress  an  intention  to 
change  the  political  status  of  alien  women  resident  in  the 
country  of  their  nativity  and  who  have  never  come  within 
our  territory.”  The  following  citation  from  Van  Dyne 
on  Naturalization  is  made:  “Whether  under  this  law 
residence  in  the  United  States  is  essential  in  order  to  con- 
fer citizenship  on  a woman  of  foreign  nationality  married 
to  a citizen  of  the  United  States  is  not  entirely  well  settled, 
although  the  better  view  appears  to  be  that  such  residence 
is  necessary.” 

This  question  has  been  on  many  occasions  submitted  to 
the  determination  of  the  judicial  and  administrative 
branches  of  the  Government.  Mr.  Moore,  in  Vol.  Ill,  p. 
456,  of  his  International  Law  Digest,  says : “That  statute 
(of  1855)  applies  to  a woman  married  to  a citizen  of  the 
United  States  irrespective  of  the  time  or  place  of  marriage 
or  the  residence  of  the  parties;18  even  though  the  woman 
lived  at  a distance  from  her  husband  and  never  came 
to  the  United  States  until  after  his  death.”  19  In  constru- 
ing the  Act  of  1855,  the  Supreme  Court  of  the  United 
States  has  said : 20  “As  we  construe  this  act,  it  confers 
the  privileges  of  citizenship  upon  women  married  to 
citizens  of  the  United  States,  if  they  are  of  the  class  of 
persons  for  whose  naturalization  the  previous  acts  of  Con- 
gress provide.  The  terms  “married”  or  “who  shall  be 
married”  do  not  refer,  in  our  judgment,  to  the  time  when 
the  ceremony  of  marriage  is  celebrated,  but  to  a state  of 
marriage.  They  mean  that  whenever  a woman,  who,  under 
previous  acts  might  be  naturalized,  is  in  a state  of  mar- 

isCiting  Kelly  v.  Owen,  7 Wall.  496,  19  Law  Ed.  283;  United  States  v. 
Kellar,  11  Biss.  314;  Williams,  Atty.  Gen.,  1874,  14  Op.  402. 

^Citing  Kane  v.  McCarthy,  63  N.  C.  299;  Headman  v.  Rose,  63  Ga. 
458. 

zoKelly  v.  Owen,  7 Wall.  496,  19  Law  Ed.  283. 


390  The  Exclusion  and  Expulsion  of  Aliens. 

riage  to  a citizen,  whether  his  citizenship  existed  at  the 
passage  of  the  act  or  subsequently,  or  before  or  after  the 
marriage,  she  becomes  by  that  fact,  a citizen  also.  His 
citizenship,  whenever  it  exists,  confers,  under  the  act, 
citizenship  upon  her.  The  construction  which  would  re- 
strict the  act  to  women  whose  husbands,  at  the  time  of 
marriage,  are  citizens,  would  exclude  far  the  greater  num- 
ber, for  whose  benefit,  as  we  think,  the  act  was  intended. 
Its  object,  in  our  opinion,  was  to  allow  her  citizenship  to 
follow  that  of  her  husband,  without  the  necessity  of  any 
application  for  naturalization  on  her  part;  and,  if  this 
was  the  object,  there  is  no  reason  for  the  restriction  sug- 
gested. 

The  terms,  ‘who  might  lawfully  be  naturalized  under 
the  existing  laws/  only  limit  the  application  of  the  law  to 
free  white  women.” 

In  Burton  v.  Burton21  the  court  expressed  itself  as  fol- 
lows : “The  Act  of  1855,  therefore,  as  we  glean  from  this 
previous  legislation,  though  unfinished,  the  history  of  the 
legislative  object  to  be  attained  by  it,  and  as  well  the  gen- 
eral considerations  which  influence  nations  in  framing 
naturalization  laws,  was  designed,  certainly,  for  the  bene- 
fit of  an  alien  white  woman,  whether  resident  or  not ,21a 
married  to  a person  who  was  at  the  time  of  the  marriage  a 
citizen  of  the  United  States,  thus  securing,  by  the  same 
law,  the  rights  of  citizenship  to  the  children  of  American 
citizens  born  abroad,  and  to  such  alien  wife  all  legal 
rights  of  citizenship,  which  otherwise,  and  by  reason  of 
her  alienism,  she  might  possess.” 

The  decision  from  which  the  foregoing  extract  is  made 
held  that  the  widow  who  had  married  her  husband  prior 
to  his  naturalization  and  who  had  not  come  to  this  coun- 
try until  after  his  death  did  not  become  thereby  a citizen 
of  the  United  States.  The  decision  turned  on  the  point 
of  the  husband’s  alien  status  at  the  time  of  marriage,  and 

2i26  How.  Pr.  474. 

2ialtalics  ours. 


Status. 


391 


the  view  was  expressed  that  because  the  wife  did  not  come 
to  this  country  until  after  her  husband’s  naturalization 
and  death  she  continued  to  be  an  alien.  But,  as  lias  been 
seen,  five  years  later  the  Supreme  Court  held  that  formal 
naturalization  was  not  essential  to  the  acquisition  of  citi- 
zenship by  the  wife;  and  in  Kane  v.  McCarthy,  decided  in 
1869  (quoted  post)  the  view  is  taken  that  it  is  immaterial 
whether  the  naturalization  of  the  husband  occurs  before 
or  after  marriage. 

In  Leonard  v.  Grant,22  the  court,  following  the  doctrine 
expressed  in  Kelly  v.  Owen,23  held  that  the  act  of  mar- 
riage conferred  citizenship  on  the  wife  without  the  neces- 
sity of  any  application  for  naturalization  on  her  part,  say- 
ing that:  “The  phrase  ‘shall  be  deemed  a citizen’  in  sec- 
tion 1994,  Revised  Statutes  (U.  S.  Comp.  Stat.  1901, 
1268),  or  as  it  was  in  the  Act  of  1855  (10  Stat.  at  L.  604, 
chap.  71,  sec.  2),  ‘shall  be  deemed  and  taken  to  be  a citi- 
zen’ while  it  may  imply  that  the  person  to  whom  it  relates 
has  not  actually  become  a citizen  by  the  ordinary  means 
or  in  the  usual  way,  as  by  the  judgment  of  a competent 
court,  upon  a proper  application  and  proof,  yet  it  does  not 
follow  that  such  person  is  on  that  account  practically  any 
the  less  a citizen.” 

The  inference  is  unavoidable  that  presence  in  the 
United  States  is  not  a prerequisite  to  the  acquisition  of 
citizenship  by  the  wife.  The  language  of  the  court  in  the 
case  of  Kane  v.  McCarthy,  1869, 24  reasserts  the  doctrine 
in  the  following  words:  “It  is  not  the  ceremony  of  mar- 
riage, or  its  time  or  place,  but  it  is  the  fact  of  being  “mar- 
ried to” — that  is,  being  the  wife  of — a citizen  that  makes 
the  wife  a citizen — that  makes  the  woman  a citizen.  The 
circumstance  that  her  husband  was  not  a citizen  at  the 
time  of  marriage  is  wholly  immaterial,  for  he  became  a 
citizen  afterwards,  ipso  facto.  So  she,  being  a free  white 

225  Fed.  11,  17. 

23 Ante,  p.  389. 

2463  N.  C.  299. 


392  The  Exclusion  and  Expulsion  of  Aliens. 


woman  married  to  a citizen,  comes  within  the  description 
and  the  very  words  of  the  Act  of  Congress,  ‘and  is  deemed 
and  taken  to  be  a citizen,’  for  it  is  the  status  of  being 
married  to — being  the  wife  of  a citizen — that  makes  her 
one.  It  can  in  no  possible  view  make  any  difference 
whether  the  marriage  ceremony  is  performed  first,  and 
then  the  husband  becomes  a citizen  or  whether  he  becomes 
a citizen  first,  and  the  marriage  afterwards  takes  place. 
Whenever  the  two  events  occur  and  come  together,  ‘she  is 
a woman  married  to  a citizen.’  The  thing  seems  to  us  too 
plain  to  admit  discussion;  it  is  like  trying  to  prove  that 
two  added  to  two  makes  four.” 

From  the  decision  in  the  case  of  Ware  v.  Wisner,25  it 
appears  to  be  immaterial  that  the  parties  at  the  time  of 
marriage  are  residing  outside  the  jurisdiction  of  the 
United  States;  and  in  the  case  of  Halsey  v.  Beer,26  the 
court  held  that  where  a naturalized  American  returned 
to  his  country  of  origin,  and  married  a foreign  woman, 
the  wife  became  an  American  citizen  by  marriage,  al- 
though both  parties  remained  abroad  after  their  mar- 
riage.27 In  Headman  v.  Kose,28  the  husband  of  an  alien 
wife  never  came  to  this  country  until  many  years  after 
his  death;  yet  the  court  held  that  the  naturalization  of 
the  husband  made  the  wife  a citizen  of  the  United  States. 
The  Attorney  General,  in  an  opinion  rendered  in  1874,  in- 
volving the  interpretation  of  the  Statute  of  1855, 29  reached 
the  same  general  conclusion,  asserting  that  “irrespective 
of  time  or  place  of  marriage  or  the  residence  of  the  par- 
ties, any  free  white  woman  married  to  a citizen  of  this 
country  is  to  be  taken  and  deemed  a citizen  of  this  coun- 
try.” And  conversely  it  has  been  held  that  where  a citizen 
of  the  United  States  leaves  his  wife  in  this  country  and 

2550  Fed.  310. 

2652  Hun.  366. 

27Doc.  No.  326,  59th  Cong.,  2d  Session,  p.  150. 

2863  Ga.  458. 

2»Op.  Atty.  Gen.,  XIV,  p.  402. 


Status. 


393 


become  naturalized  in  a foreign  state,  his  wife  became 
a citizen  of  that  state  even  though  she  remained  in  this 
country.30 

Mr.  Van  Dyne,  after  citing  in  his  book  on  Naturaliza- 
tion, p.  234,  some  of  the  cases  which  hold  that  to  acquire 
American  citizenship  by  marriage  a woman  of  foreign  ex- 
traction need  not  reside  in  this  country,  quotes  but  one 
judicial  decision,  Burton  v.  Burton,31  as  holding  the  op- 
posite view.  But,  as  before  pointed  out,32  the  court  stated 
flatly  in  that  case  that  the  Act  of  1855  “was  designed  cer- 
tainly for  the  benefit  of  an  alien  white  woman,  whether 
resident  or  not,  married  to  a person  who  was  at  the  time  of 
the  marriage  a citizen  of  the  United  States.”  Dower  was 
refused  on  the  ground  that  the  husband  was  not,  when  he 
married  her,  a citizen  of  this  country,  and  furthermore 
because,  not  having  come  to  the  United  States,  she  con- 
tinued to  be  an  alien  at  the  time  of  the  marriage,  and  the 
subsequent  acquisition  by  him  of  the  citizenship  status 
was  insufficient  to  confer  citizenship  on  the  wife.  But 
the  Supreme  Court  subsequently  held  that  the  husband’s 
citizenship  whenever  it  exists  confers,  under  the  act,  citi- 
zenship upon  the  wife,  irrespective  of  whether  his  citizen- 
ship existed  before  or  after  the  marriage.33  The  language 
cited  from  the  Burton  case  shows  that,  had  the  court 
taken  the  Supreme  Court’s  view  on  this  point  the  ques- 
tion of  the  wife’s  residence  in  this  country  would  have 
been  immaterial. 

The  Department  of  State  has  at  various  times  had  oc- 
casion to  pass  on  this  subject,  and  has  taken  the  view 
that  the  effect  of  a marriage  between  an  alien  woman  and 
an  American  citizen,  performed  in  the  presence  of  an 
American  consular  officer,  as  provided  by  section  4082 

aoKircher  v.  Murray,  54  Fed.  617 ; but  see  Ruckgaber  v.  Moore,  104 
Fed.  947. 

3i Ante,  p.  390. 

32  IHd. 

33Kelly  v.  Owen,  ante , p.  389. 


394  The  Exclusion  and  Expulsion  of  Aliens. 


of  the  Revised  Statutes,34  results  in  the  naturalization  of 
the  woman.35  And  again  Mr.  Fish36  said : “The  statute  of 
the  United  States  regulating  the  status  of  alien  women 
married  to  American  citizens  was  approved  on  the  10th 
of  February,  1855  (10  Stat.  L.  604).  By  this  statute  it  is 
enacted  ‘that  any  woman  who  might  lawfully  be  natural- 
ized under  the  existing  laws,  married  or  who  shall  be  mar- 
ried to  a citizen  of  the  United  States,  shall  be  deemed  and 
be  taken  to  be  a citizen. ? 

“The  Attorney  General  of  the  United  States  in  constru- 
ing this  statute  has  held  ‘that  irrespective  of  the  time  or 
place  of  marriage,  or  the  residence  of  the  parties,  any 
free  white  woman,  not  an  alien  enemy,  married  to  a citizen 
of  this  country,  is  to  be  taken  and  deemed  a citizen  of  the 
United  States.’  (Williams,  Atty.  Gen.,  1874,  14  Op.  402, 
406.) 

“There  can,  therefore,  be  no  doubt  that  such  person 
would,  upon  her  marriage  to  an  American  citizen,  acquire 
the  right  to  be  regarded  by  the  authorities  of  the  United 
States  as  an  American  citizen  in  every  country  except  that 
to  which  she  owed  allegiance  at  the  time  of  her  marriage. 

“It  is  understood  at  the  Department  that  the  laws  of 
Russia  regard  a Russian  subject  marrying  a foreign  hus- 
band as  a foreigner.  In  such  case  no  conflict  of  law 
could  arise,  because  the  Russian  government  would  con- 
cede the  full  American  citizenship  of  the  married  woman. 
But  should  it  be  otherwise,  her  relations  to  that  Govern- 
ment would  be  affected  by  another  opinion  of  the  Attorney 
General  (Hoar,  Atty.  Gen.,  1869,  13  Op.  128),  that  while 
the  United  States  may  by  law  fix  or  declare  the  conditions 
constituting  citizens  of  the  country  within  its  own  ter- 
ritorial jurisdiction,  and  may  confer  the  rights  of  Amer- 

34Act  June  22,  1860,  c.  179,  s.  31,  v.  12,  p.  79. 

35Mr.  Fish,  Sec.  State  to  Mr.  Bancroft,  June  17,  1870;  Inst.  Prussia, 
XV,  126;  Moore’s  Digest,  Vol.  Ill,  p.  457. 

36To  Mr.  Jewell,  June  9,  1874,  H.  Ex.  Doc.  470,  51st  Cong.  1 Sess.  24; 
Moore’s  Digest,  Vol.  Ill,  p.  461. 


Status. 


395 


ican  citizens  everywhere  upon  persons  who  are  not  right- 
fully subject  to  the  authority  of  any  foreign  country  or 
government,  it  ought  not,  by  undertaking  to  confer  the 
rights  of  citizenship  upon  the  subject  of  a foreign  nation, 
who  has  not  come  within  our  territory  to  interfere  with 
the  just  rights  of  such  nation  to  the  government  and  con- 
trol of  its  own  subjects.” 

As  Mr.  Van  Dyne  points  out  in  his  excellent  work  on 
Naturalization,37  the  trend  of  Departmental  decisions 
seems  to  be  to  the  effect  that,  while  the  force  and  validity 
of  the  Act  of  1855  is  well  recognized,  the  Department 
will  be  slow  to  extend  peculiar  privileges  or  protection 
claimed  on  the  sole  basis  of  American  citizenship  to  women 
of  foreign  extraction  who,  except  for  the  act  of  marriage, 
have  taken  no  steps  to  transfer  their  allegiance  to  the 
United  States,  and  who  by  remaining  in  the  country  of 
origin  continue  to  tend  the  latter  an  allegiance  which,  by 
the  mere  fact  of  their  continued  presence  within  its  terri- 
torial limits  has  never  been  withdrawn.  To  quote  from 
the  examples  selected  by  Mr.  Van  Dyne: 

“While  the  general  rule  is  that  the  wife  and  minor  chil- 
dren share  the  fortunes  of  the  husband  and  father,  it  is 
necessary  that  they  should  in  fact  partake  of  his  change 
of  domicile  and  allegiance,  and  it  has  been  held  that  the 
naturalization  of  an  alien  in  the  United  States  does  not 
require  this  Government  to  regard  as  American  citizens 
those  members  of  his  household  who  have  never  been 
within  the  jurisdiction  of  the  United  States  but  have  re- 
mained in  the  land  of  their  original  allegiance.  ( Mr.  Rive 
to  Mr.  Smith,  ;Dec.  13,  1888;  III  Moore’s  Int.  Law  Digest, 
486.) 38 

“This  Department  prudently  refrains  from  asserting  its 
application  to  the  case  of  an  alien  wife  continuing  within 
her  original  allegiance  at  the  time  of  her  husband’s  nat- 
uralization in  the  United  States,  inasmuch  as  the  citizen- 

37pp.  234-240,  inc. 

38Naturalization,  p.  236. 


396  The  Exclusion  and  Expulsion  of  Aliens. 


ship  of  the  wife  might  not  be  effectively  asserted  as  against 
any  converse  claim  of  the  sovereignty  within  which  she 
she  has  remained.  The  result  would  naturally  be  a con- 
flict of  private  international  law,  wherein  the  state  within 
whose  actual  jurisdiction  the  wife  remains  might  be  found 
to  have  the  practical  advantage  of  the  argument.  (Mr. 
Foster,  Secretary  of  State,  to  Mr.  Thompson,  Minister  to 
Turkey,  February  9,  1893,  3 Moore’s  Int.  Law  Digest, 
486.)”  39 

“Mr.  Gresham  expressed  the  opinion  that  naturaliza- 
tion in  the  United  States  has  no  international  effect  on 
the  allegiance  of  the  wife  and  children  of  the  naturalized 
person  while  they  continue  to  reside  in  the  country  of 
origin.”  (Secretary  Gresham  to  Mr.  Watrous,  January 
23,  1905,  3 Moore’s  Int.  Law  Digest,  487.) 40 

Secretary  Olney  is  quoted  as  expressing  the  view  “that 
the  naturalization  of  a Turkish  subject  in  the  United 
States  does  not  operate  to  naturalize  his  wife,  who  has 
never  been  in  the  United  States  and  who  is  at  the  time 
dwelling  in  a foreign  country.”41 

A comparison  of  the  judicial  and  administrative  views 
expressed  on  this  point  shows  that  since  the  passage 
of  the  Act  of  1855,  the  courts  have,  in  interpreting  that 
act,  unanimously  reached  the  conclusion  that  the  mar- 
riage of  a woman  of  foreign  extraction  to  a citizen  of  the 
United  States  makes  her  ipso  facto  a citizen  of  this  coun- 
try, irrespective  of  whether  the  marriage  took  place  in  the 
United  States ; and  that,  with  the  one  exception  of  the  de- 
cision in  the  case  of  Burton  v.  Burton,  which,  in  view  of 
the  decision  of  the  Supreme  Court  in  Kelly  v.  Owen  can 
no  longer  be  deemed  authoritative,  the  courts  have  agreed 
that  the  wife  becomes  an  American  citizen  by  the  naturali- 
zation of  the  husband  subsequent  to  the  marriage  On  the 
other  hand  the  weight  of  opinion  of  the  succeeding  Secre- 

39Van  Dyne,  Naturalization,  p.  237. 

40 Ibid.,  p.  237. 

4i Hid.,  p.  237. 


Status. 


397 

<|;v i 

taries  of  State  is  that,  for  purposes  of  protection  by  this 
country,  whether  taking  the  form  of  the  granting  of  a 
passport  or  some  more  active  manifestation  of  national 
protection,  alien  women  who  have  married  citizens  of  this 
country,  but  who  have  themselves  never  resided  here,  are 
not  citizens  of  the  United  States. 

The  reasons  for  this  divergence  of  views  is  not  hard  to 
find.  The  decisions  rendered  by  the  courts  were  necessar- 
ily decided  in  connection  with  personal  or  property  rights 
bearing  on  persons  or  things  actually  within  the  scope  of 
the  courts’  jurisdiction;  they  involved  the  application  of 
principles  of  our  municipal  law  to  subject  matter  over 
which  the  courts  had  present  and  exclusive  control.  In 
the  cases  presented  to  the  Department  of  State  the  ques- 
tions which  arose  were  bound  to  be  decided  on  principles  of 
national  policy  and  international  law.  Protection  in  its 
varying  forms  based  on  the  ground  of  citizenship  is  denied 
not  because,  as  far  as  it  goes,  the  Act  of  1855  was  held 
not  competent  to  confer  it,  but  because  the  law  of  this 
country  was  not  the  only  law  to  be  taken  into  account  in 
determining  whether  or  not  in  a given  case  complete 
American  citizenship  existed  in  an  international  sense. 
This  idea  is  expressed  in  the  opinion  of  Mr.  Gresham42  to 
the  effect  that  naturalization  of  the  husband  in  this  coun- 
try has  no  international  effect  on  the  allegiance  of  his  wife 
and  children  who  have  never  left  their  country  of 
origin.  And  it  is  furthermore  emphasized  by  the 
fact  that  the  administrative  opinions  cited  by  Mr. 
Van  Dyne,43  all  of  which,  with  the  exception  of 
Mr.  Olney’s  report  to  Congress,  are  contained  in 
Moore’s  Digest,44  and  there  classified  under  the  heading 
u Naturalization  Internationally  Ineffective  as  to  Absent 
Family  f’  while  under  the  classification  e( Marriage  of 
Alien  Women  to  Americans — (1) American  Law”  Mr. 

42 Ante,  p.  396. 

43 Ante,  pp.  395,  396. 

44Vol.  Ill,  pp.  485-87. 


398  The  Exclusion  and  Expulsion  of  Aliens. 


Moore  points  out  in  a footnote  that  citizenship  is  acquired 
by  marriage  under  the  statute  irrespective  of  residence.45 

The  unwillingness  of  the  Department  of  State  to  recog- 
nize those  women  who,  although  married  to  citizens  of  the 
United  States,  have  themselves  remained  abroad  is  not 
due  to  the  fact  of  their  absence  from  this  country,  but  to 
that  of  their  presence  in  and  continued  allegiance  to  an- 
other. Nothing  is  more  certain  than  that  it  is  the  part 
of  a sound  national  policy  to  refrain  from  any  attempt 
to  assert  the  existence  of  the  force  or  validity  of  the  mu- 
nicipal law  of  one  country  within  the  territorial  limits 
of  another.  To  do  so  would,  as  has  been  well  said  by  a 
former  Secretary  of  State,  merely  result  in  “a  conflict  of 
private  international  law,  wherein  the  state  within  whose 
actual  jurisdiction  the  wife  remains  might  be  found  to 
have  the  practical  advantage  of  the  argument.”  46  In  this 
case  the  passport  was  in  fact  issued  to  a Turkish  womam, 
the  wife  of  a naturalized  citizen  of  the  United  States  who 
had  never  resided  in  this  country.  Although  the  Depart- 
ment was  of  the  opinion  that  the  minister  in  issuing  the 
passport  exceeded  his  instruction,  it  plainly  recognized 
the  distinction  between  the  political  status  of  the  woman 
and  that  of  her  minor  children  who  had  never  been  in  this 
country.47  This,  however,  is  far  from  saying  that  the  Act 
of  1855  cannot  or  does  not  vest  foreign  women  with  the 
political  status  of  citizenship  merely  because  they  do  not 
happen  to  reside  in  this  country ; it  only  asserts  the  inter- 
national principle  that  the  act  cannot  operate  to  termi- 
nate the  allegiance  of  a foreign  born  person  to  his  natural 
sovereign  as  long  as  that  person,  by  remaining  under  the 
protection  of  the  latter  continues  to  tender  that  allegiance 
and  the  sovereign,  by  continuing  to  confer  his  protection, 
is  in  a position  to  demand  it.  The  most  natural  conclu- 

450n  page  456. 

*6Mr.  Foster,  Sec.  of  State,  to  Mr.  Thompson,  Min.  to  Turkey,  Feb.  9, 
1893,  For.  Rel.  1893,  p.  598;  Moore’s  Dig.,  Vol.  Ill,  p.  486. 

*7Moore’s  Dig.,  HI,  p.  489. 


Status. 


399 


sion  would  seem  to  be  that  announced  by  Mr.  Fish,  al- 
ready quoted : that  a foreign  woman  marrying  an  American 
citizen  acquires  under  the  statute  the  right  to  be  re- 
garded by  the  authorities  of  the  United  States  as  an  Amer- 
ican citizen  in  every  country  except  that  to  which  she 
owes  allegiance  at  the  time  of  the  marriage. 

Taken  jointly,  the  result  of  the  judicial  and  adminis- 
trative decisions  devoted  to  interpreting  the  Act  of  1855 
seems  to  be  this:  Whenever  the  subject  matter  on  which 
the  courts  of  this  country  have  jurisdiction  to  pass  in- 
volves the  question  of  personal  or  property  rights  claimed 
by  a woman  of  foreign  extraction  who  has  married  a 
citizen  of  the  United  States,  or  an  alien  who,  after  the 
marriage  and  at  the  time  the  judicial  question  is  presented, 
has  become  naturalized  according  to  law,  the  courts  will 
hold  that,  in  accordance  with  the  provisions  of  the  Act 
of  1855,  the  wife  has  become  a citizen  of  the  United  States 
irrespective  of  whether  she  has  ever  resided  in  this  coun- 
try. When,  however,  the  question  is  presented  adminis- 
tratively and  the  full  enjoyment  of  the  right  claimed  on 
the  basis  of  citizenship  may  conflict  with  the  rights  and 
duties  incident  to  a hitherto  permanent  allegiance  to  a 
foreign  sovereign,  which  the  claimant  has,  by  continuing 
to  reside  in  the  foreign  jurisdiction,  made  no  effort  to 
avoid,  the  enjoyment  of  such  rights  will  be  denied,  as  a 
matter  of  national  policy  based  on  the  international  prin- 
ciple of  non-interference  by  outsiders  with  existing  sov- 
ereign rights.  The  weight  of  judicial  opinion  to  the  ef- 
fect that  actual  residence  in  this  country  is  not  a pre- 
requisite to  the  acquisition  of  citizenship  by  marriage  by 
a woman  of  foreign  extraction  would  seem  to  be  supported 
by  the  latest  expression  of  Congress  on  the  subject.  Sec- 
tion 4 of  the  Act  of  March  2,  1907,  entitled  “An  act  in 
reference  to  the  expatriation  of  citizens  and  their  protec- 
tion abroad,”  provided  “that  a foreign  woman  who  ac- 
quires American  citizenship  by  marriage  to  an  American 


400  The  Exclusion  and  Expulsion  of  Aliens. 


citizen  may  if  she  resides  abroad  retain  her  citizenship 
by  registering  after  the  termination  of  such  marital  rela- 
tion.^ The  suggestion  that  the  foreign  residence  referred 
to  might  be  taken  to  mean  residence  abroad  after  mar- 
riage, or  residence  in  this  country,  would  seem  to  be 
avoided  by  section  2 of  the  act,  which  provides  that  a resi- 
dence of  two  years  by  a naturalized  citizen  in  the  country 
of  origin,  or  of  five  in  any  other  foreign  country,  shall 
result  in  the  loss  of  United  States  citizenship  in  the  ab- 
sence of  compliance  with  certain  specified  conditions. 
Again,  section  2 provides  that  American  women  shall  lose 
their  citizenship  by  the  mere  fact  of  marriage  to  a for- 
eigner, even,  it  seems,  if  she  continues  to  reside  in  this 
country;  and  it  appears  unreasonable  to  suppose  that 
Congress,  in  adhering  so  strictly  to  the  principle  of  the 
acquisition  of  nationality  by  marriage  to  an  alien  resid- 
ing beyond  the  limits  of  his  country  of  origin  as  to  de- 
prive an  American  woman  of  her  political  birthright,  did 
not  intend  to  apply  the  same  principle  to  the  case  of  an 
alien-born  woman  who  when  abroad  marries  one  who  is 
or  later  becomes  a citizen  of  the  United  States.  Interpret- 
ing section  3,  the  Circuit  Court  of  Appeals,  Second  Cir- 
cuit, 1910, 48  said : 

“It  is  plain  that  Congress  here  intends  that  the  wife 
shall  assume  the  nationality  of  her  husband  even  to  the 
extent  of  expatriation  in  the  case  of  an  American  woman. 
Though  an  American  citizen  prior  to  her  marriage  she 
cannot  resume  that  relationship  while  the  marriage  rela- 
tionship continues.” 

In  view  of  the  provisions  of  the  Acts  of  1855  and  1907, 
of  the  result  of  judicial  decisions,  and  of  the  further  fact 
that  even  the  departmental  decisions  above  set  out  refuse 
recognition  of  full  citizenship  to  alien  women  residing 
abroad  married  to  citizens  of  the  United  States  only  when 
to  grant  them  full  rights  as  citizens  would  tend  to  conflict 


48179  Fed.  834. 


Status. 


401 


with  the  rights  and  duties  incident  to  an  allegiance  to  a 
foreign  sovereign  which  they  have  continued  to  main- 
tain, it  is  difficult  to  find  justification  for  those  decisions 
which  hold  that  merely  because  such  women  have  not  re- 
sided in  the  United  States  since  their  marriage  they  are 
liable  to  exclusion  as  aliens  under  the  immigration  law. 
In  such  a case  the  court  has  before  it  the  Acts  of  1855 
and  1907,  the  woman  herself  is  physically  within  the  ter- 
ritorial limits  of  the  jurisdiction  where  the  municipal 
law  of  the  United  States  is  of  exclusive  application,  and 
the  facts  on  which  the  political  status  of  the  applicant  is 
based  are  fully  admitted.  The  question  presented  is 
purely  judicial  in  character,  and  the  issue  of  citizenship 
when  one  of  law  is  no  longer  a subject  of  administrative 
determination  but  is  exclusively  within  the  jurisdiction 
of  the  courts.  Under  these  conditions  it  would  seem  that 
the  courts  should  be  bound  by  the  decisions  of  Mr.  Jus- 
tice Field  in  the  case  of  Kelly  v.  Owen,  and  that  of  Mr. 
Justice  Harlan  in  the  case  of  United  States  v.  Kellar, 
and  of  other  courts  entitled  to  the  greatest  respect,  which, 
as  has  been  seen,  hold  unanimously  that  the  fact  that  the 
marriage  takes  place  beyond  the  limits  of  the  United 
States  has  no  effect  on  the  acquisition  of  citizenship  by  the 
wife.  And  it  would  seem  that,  aside  from  the  authority 
of  the  decisions  above  set  forth  bearing  directly  on  the 
acquisition  of  citizenship  by  non-resident  women  of  for- 
eign extraction,  the  fact  that  even  since  the  passage  of  the 
Act  of  1855  the  courts  have  uniformly  recognized  the 
broad  principle  that  an  alien  woman  by  marrying  an 
American  citizen  becomes  thereby  herself  a citizen49 
should  not  be  without  its  effect.  The  objections  existing 

49Kane  v.  McCarthy,  1869,  63  N.  C.  299;  Kreitz  v.  Behrensmeyer,  1888, 
125  111.  141;  People  v.  Newell,  1888,  38  Hun.  78;  Halsey  v.  Beer,  1889,  52 
Hun.  366 ; Gumm  v.  Hubbard,  1888,  97  Mo.  341 ; Knickerbocker  Life  Ins.  Co. 
v Gorbach,  1871,  70  Pa.  St.  150;  United  States  v.  Kellar,  1882,  13 
Fed.  82;  Broadis  v.  Broadis,  1898,  86  Fed.  951;  Ware  v.  Wisner,  1883,  50 
Fed.  310;  all  of  which  are  cited  in  Letter  from  Secretary  of  State,  De- 
cember 20,  1906,  Doc.  No.  326,  50th  Cong.,  2d  session,  pp.  149,  150. 


402  The  Exclusion  and  Expulsion  op  Aliens. 

in  the  administration  of  a national  policy  do  not  exist 
in  the  judicial  administration  of  municipal  law. 

But,  viewing  the  question  in  a purely  administrative  as- 
pect, if  indeed  that  were  possible,  taking  into  consideration 
that  the  administrative  decisions  based  on  conclusions  of 
law  as  opposed  to  findings  of  fact  are  always  subject  to  ju- 
dicial review — and  assuming  that  under  such  conditions  it 
might  be  more  natural  for  the  Department  of  Commerce 
and  Labor  to  follow  administrative  rather  than  judicial 
precedent,  it  is  enough  to  say  that  the  decisions  of  the 
State  Department  on  the  point  have  established  no  prece- 
dent applicable  to  the  case.  The  State  Department  has  re- 
fused the  protection  based  on  the  claim  of  citizenship  sim- 
ply because  of  the  continued  existence  in  the  party  claim- 
ing it  of  an  allegiance  with  all  its  attendant  rights  and 
obligations  to  a foreign  power,  which  in  return  therefor 
extends  a protection  coterminous  with  the  allegiance  prof- 
fered. That  there  may  be  no  clash  between  the  rights  and 
obligations  incident  to  a double  allegiance  while  the 
woman  remains  in  her  country  of  origin  is  the  spirit  and 
purpose  of  the  departmental  policy.  Where,  however,  the 
foreign-born  wife  of  an  American  citizen  either  accom- 
panies him  to  the  United  States,  or  seeks  by  herself  to 
enter  in  order  to  join  him,  the  very  act  of  throwing  off 
her  original  allegiance  by  coming  to  this  country  for  pur- 
poses of  residence  nullifies  the  only  objection  which 
hitherto  existed  against  the  full  enjoyment  of  her  rights 
of  American  citizenship  acquired  by  virtue  of  the  Acts 
of  1855  and  1907 — in  other  words,  the  withdrawal  of  her 
allegiance  by  departure  from  her  country  of  origin  oper- 
ates per  se  to  terminate  the  rights  and  obligations  hitherto 
incident  thereto,  and  permits  her  to  exercise  her  full 
rights  of  marriage,  which,  perhaps,  she  could  not  hitherto 
exercise  without  violating  some  duty  to  her  former  sover- 
eign. In  the  eyes  of  the  municipal  law  of  the  United 
States  she  was  vested  with  a new  political  status  by  the 


Status. 


403 


fact  of  her  marriage.  In  international  law  she  could  not 
exercise  rights  incident  to  that  status  to  the  exclusion  of 
duties  resulting  directly  from  continued  residence  within 
the  territorial  limits  of  her  country  of  origin.  But  the 
original  status  terminating  per  se  with  departure  coupled 
with  the  intent  of  permanent  separation  and  entrance  into 
the  jurisdiction  of  the  United  States,  all  the  rights  con- 
ferred by  the  status  subsequently  acquired  become  capable 
of  enforcement  without  the  risk  of  violating  pre-existing 
sovereign  rights  incident  to  the  relationship  of  protector 
and  protected.  The  rule  laid  down  by  the  courts  that  an 
alien  who  has  arrived  at  a port  of  the  United  States  and 
whose  right  to  enter  has  not  as  yet  been  passed  on  by 
immigration  officers  is  not,  for  the  purpose  of  invoking  the 
protection  of  certain  guarantees  contained  in  our  muni- 
cipal law,  to  be  deemed  within  United  States  jurisdic- 
tion, has  no  application  to  the  case  under  discussion.  The 
rule  is  based  on  the  principle  that,  since  a sovereign  state 
is  not  obliged  to  accept  the  allegiance  of  foreigners,  and 
protection  can  only  be  claimed  by  virtue  of  an  allegiance, 
either  temporary  or  permanent,  such  protection  cannot 
be  conceded  to  exist  until  the  proper  authorities  have 
determined  whether  or  not  the  allegiance  proffered  is 
such  as  under  the  municipal  laws  of  the  country  is  ac- 
ceptable to  the  United  States.  But  in  the  case  of  the 
foreign-born  woman  who  marries  an  American  citizen,  the 
acts  of  Congress  providing  that  she  shall  be  deemed  a 
citizen  of  this  country  unequivocally  assert  that,  provided 
that  she  may  herself  be  lawfully  naturalized,  her  alle- 
giance is  not  only  acceptable  but,  in  so  far  as  the  laws  of 
the  United  States  have  any  effect,  must  follow  that  of  her 
husband. 

b.  What  Women  May  Be  Lawfully  Naturalized. 

Thus  far  the  right  of  the  wife  to  enter  the  country  has 
been  considered  solely  from  the  point  of  view  of  whether  or 
not  the  Acts  of  1855  and  1907  confer  upon  her  a political 


104  The  Exclusion  and  Expulsion  of  Aliens. 

status  which  of  itself  is  sufficient  to  remove  her  from  the 
operation  of  the  immigration  acts;  and  in  reaching  the 
conclusion  that  such  political  status  is  acquired  irrespec- 
tive of  whether  she  has  ever  entered  or  resided  in  the 
United  States,  no  other  principles  than  those  asserted  in 
the  laws  on  citizenship  and  naturalization  have  been  ap- 
plied. When  the  question  for  the  court  to  determine  has 
been  whether  or  not  a woman  of  foreign  extraction  basing 
her  right  to  enter  on  American  citizenship  is  subject  to 
the  operation  of  the  immigration  acts — the  fact  of  the 
marriage  being  conceded — the  courts  have  generally  taken 
the  view  that  the  applicant’s  rights  are  to  be  determined 
by  the  provisions  of  those  acts  of  Congress  which  deal 
with  the  acquisition  of  citizenship  by  aliens;  since  it  is 
only  by  virtue  of  the  provisions  there  contained  that  a 
change  of  political  status  on  the  part  of  the  alien  can 
occur.  This  appears  to  be  the  reasonable  and  natural 
view  to  take.  Yet  the  courts  in  both  the  Rustigian50  and 
the  Kaprielian51  cases  unhesitatingly  assert  that  citizen- 
ship by  marriage  cannot  be  acquired  by  foreign-born 
women  who  at  the  time  of  the  marriage  would,  if  aliens, 
be  subject  to  exclusion  under  the  immigration  act.  In 
the  Rustigian  case  the  court  thought  it  “unreasonable  to 
hold  that  it  was  the  intention  of  Congress  to  confer  Amer- 
ican citizenship  upon  an  alien  who  is  excluded  by  the  im- 
migration acts  from  admission  to  the  county;”  and,  fol- 
lowing the  dictum  in  the  Rustigian  case,  the  court  in  the 
Kaprielian  case  states  that  “an  alien  who  is  of  a class  of 
persons  excluded  by  law  from  admission  to  the  United 
States  does  not  come  within  the  provisions  of  section  1994 
(the  Act  of  1855).”  And  both  judges  express  the  view 
that  it  was  not  the  intention  of  Congress  by  passing  the 
Act  of  1855  to  annul  or  override  the  immigration  laws. 
This  is  in  effect  to  assume  that  both  sets  of  laws  cover, 
in  part  at  least,  the  same  subject  matter;  and  further- 

so/n  re  Bustigian,  165  Fed.  980. 

si  Ex  parte  Kaprielian,  188  Fed.  694. 


Status. 


405 


more  it  appears  to  be  in  flat  conflict  with  the  interpreta- 
tion placed  on  the  statutes  by  the  Supreme  Court  of  the 
United  States52  and  by  many  other  courts  whose  views 
deserve  the  greatest  consideration,  to  the  effect  that  citi- 
zenship by  marriage  may  be  acquired  irrespective  of  the 
presence  of  the  woman  in  this  country. 

Assuming  that  the  courts  which  have  construed  the 
Act  of  1855  are  correct  in  holding  that  it  confers  citi- 
zenship on  women  of  alien  extraction  irrespective  of 
where  the  marriage  takes  place,  how,  it  may  be  asked, 
can  its  provisions  operate  to  annul  the  provisions  of 
an  act  the  sole  purpose  of  which  is  to  prevent  un- 
desirable aliens  from  entering  the  United  States?  The 
fact  that  the  acquisition  of  citizenship  by  marriage 
may  result  in  allowing  an  undesirable  person  of  for- 
eign extraction  to  enter  and  reside  in  this  country  can- 
not be  deemed  to  render  ineffective  or  in  any  way  to 
interfere  with  the  provisions  of  an  act  which  is  exclusively 
restricted  in  its  operation  to  persons  other  than  citizens, 
and  who  do  not  owe  allegiance  to  the  United  States.  To 
contend  that  a person  excluded  from  admission  does  not 
come  within  the  purview  of  the  Act  of  1855  as  was  stated 
in  the  Kaprielian  case,  is  to  assume  that  admission  into 
the  United  States  is  a prerequisite  to  the  acquisition  of 
American  citizenship,  and  to  support  the  assumption  in- 
volves the  discrediting  of  the  views  endorsed  by  both  the 
courts  and  the  Attorney  General.  To  contend  that  unless 
a woman  of  foreign  extraction  is  admissible  under  the  im- 
migration law  she  is  incapable  of  lawful  naturalization  is 
to  change  the  words  of  the  state  to  “admitted  and  natural- 
ized.” Ever  since  the  Supreme  Court’s  decision  in  the 
case  of  Kelly  v.  Owen,53  the  courts  have  uniformly  held 
that,  notwithstanding  the  provision  in  the  then  existing 
naturalization  laws  specially  designating  the  steps  to  be 

52 Ante,  p.  389. 

53 Ante,  p.  389. 


406  The  Exclusion  and  Expulsion  of  Aliens. 

taken  by  foreigners  in  order  to  become  citizens  of  the 
United  States  (which,  of  course,  involved  their  residence 
in  this  country),  citizenship  by  marriage  was  acquired 
by  foreign-born  women  by  the  mere  fact  of  the  marriage 
itself ; and  that  the  specific  provisions  of  the  naturaliza- 
tion laws  had  no  application  to  such  cases,  and  that  no 
further  qualifications  than  that  the  woman  should  be  a 
“free  white  woman”  are  required.  If  there  is  any  virtue 
in  the  contention  that  it  is  unreasonable  to  suppose  that 
it  was  the  intention  of  Congress  to  confer  citizenship  on 
an  alien  excludable  under  the  immigration  laws  from  en- 
tering the  country,  there  would  seem  to  be  at  least  equal 
force  in  the  argument  that  it  was  not  the  intention  of 
Congress  to  confer  citizenship  on  an  alien  who  had  failed 
to  become  naturalized  in  the  formal  methods  provided  by 
an  act  the  sole  purpose  of  which  was  to  enable  foreigners 
to  become  citizens  of  the  United  States;  yet,  as  we  have 
seen,  this  contention  has  never  received  judicial  support. 

Following  to  its  logical  conclusion  the  doctrine  that  the 
Act  of  1855  cannot  be  held  to  confer  citizenship  by  mar- 
riage on  alien  women  who  are  inadmissible  under  the  im- 
migration act,  what  is  the  result?  An  alien  woman  suffer- 
ing with  trachoma  marries  a citizen  of  the  United  States 
in  France  where  the  law  provides  that  a French  woman 
marrying  a foreigner  takes  his  nationality.  Here  there 
can  be  no  conflict  of  allegiance  between  the  laws  govern- 
ing citizenship  in  the  two  countries.  If  admissibility  under 
the  immigration  law  is  to  be  the  test  of  citizenship,  as  far 
as  American  law  is  concerned,  the  woman  is  not  a citizen 
of  the  United  States,  and  previous  decisions  to  the  effect 
that  the  marriage  ipso  facto  vests  her  with  citizenship 
no  longer  apply.  During  their  return  to  this  country  the 
wife  is  cured  of  her  disease.  Unless  it  is  denied  that  in 
the  absence  of  such  disability  the  Statute  of  1855  operates 
to  vest  the  woman  with  American  citizenship,  then,  when 
the  disability  disappears,  she  becomes  an  American  citi- 
zen. The  result  is  to  make  the  acquisition  of  a political 


Status. 


407 


status  depend  entirely  upon  a fortuitous  physical  condi- 
tion. If  it  is  suggested  that  it  is  unreasonable  to  attempt 
to  apply  the  principle  to  persons  outside  the  jurisdiction 
of  the  United  States  the  answer  is  that  in  such  case  the 
acquisition  of  political  status  outside  the  territorial  limits 
of  this  country  must  be  exclusively  governed  by  the  only 
law  covering  the  subject,  to  wit:  the  Acts  of  1855  and 
1907.  But  if  this  is  conceded,  citizenship  in  the  wife  is 
conceded,  and  any  disability  with  which  she  may  be  suf- 
fering at  the  time  of  her  admission  to  this  country  cannot 
subject  her  as  a citizen  of  the  United  States  to  the  opera- 
tion of  the  immigration  laws. 

If  the  general  doctrine  announced  in  the  Rustigian  case 
is  to  be  sustained,  it  can  be  only  on  the  assumption  that 
the  Act  of  1855  does  not  operate  on  alien  women  residing 
abroad  at  the  time  of  their  marriage.  But  to  attempt 
to  sustain  it  would  be,  not  only  to  deny  the  force  of  those 
decisions  already  cited  where  the  point  at  issue  was  the 
interpretation  of  the  right  of  applicants  for  admission  to 
enter  the  United  States,  but  of  later  decisions  rendered 
in  connection  with  the  power  of  executive  officers  to  ex- 
clude persons  of  foreign  extraction  under  the  immigra- 
tion laws. 

In  the  case  of  United  States  v.  Williams,54  which  were 
habeas  corpus  proceedings  on  relation  of  Thakla  Nicola 
and  Bertha  Gendering,  respectively,  against  the  commis- 
sioner of  immigration  at  the  port  of  New  York,  it  was  held 
in  the  case  of  one  of  the  petitioners,  a subject  of  Turkey, 
that  her  marriage  with  an  American  citizen  made  her  a 
citizen  of  the  United  States,  and  that  the  fact  that  after 
the  marriage  and  before  she  reached  the  United  States 
with  her  husband,  she  contracted  some  disease  which 
would  have  excluded  her  as  an  alien  would  not  warrant 
her  exclusion ; and  in  the  case  of  the  other  petitioner,  who 
had  married  in  New  York  but  deserted  her  husband  and 


54173  Fed.  626,  1909. 


408  The  Exclusion  and  Expulsion  of  Aliens. 

gone  to  Holland  with  a paramour,  that  the  naturalization 
of  her  husband  conferred  citizenship  on  her.  The  law  of 
Holland  is  that  the  woman  who  marries  a foreigner  takes 
his  nationality.  The  court  sustained  the  principle 
that  the  marriage  of  an  alien  woman  in  a for- 
eign jurisdiction  to  an  American  citizen  is  within  the 
operation  of  the  Act  of  1855,  and  cites  in  support  of  this 
view  Halsey  v.  Beer,  Headman  v.  Rose,  Kane  v.  Mc- 
Carthy and  Burton  v.  Burton.55  The  court  said:  “It  is 
urged  that  our  own  act  does  not  cover  the  case,  but  that 
only  she  may  be  naturalized  who  might  at  the  time  be 
admitted  as  an  alien.  The  words  are  ‘who  may  herself 
be  lawfully  naturalized.’  I cannot  change  the  words  to 
‘admitted  and  naturalized.’  Certainly  they  refer  to  the 
classes  as  defined  by  the  naturalization  law.  If  an  alien 
woman  is  once  admitted  and  then  marries  would  it  be  an 
answer  to  her  claim  of  citizenship  that  she  had  trachoma 
when  she  married?  If  not,  then  it  cannot  be  the  case 
when  she  acquires  the  same  right  while  out  of  the  coun- 
try.” The  Government  appealed  and  the  Circuit  Court 
of  Appeals  rendered  its  decision  under  the  title  of  In  re 
Nicola ,56  The  court  said:  “At  the  time  the  relators  be- 
came citizens  by  marriage  with  American  citizens  they 
might  have  been  lawfully  naturalized.  Even  if  we  assume 
the  contention  of  the  district  attorney  to  be  correct,  that 
marriage  will  not  make  a citizen  of  a woman  who  would 
be  excluded  under  our  immigration  laws,  it  does  not  affect 
these  relators.  There  is  no  pretense  that  when  their  hus- 
bands’ nationality  was  conferred  upon  them  by  law  they 
were  not  healthy  physically,  mentally  and  morally.  If  at 
that  time  they  gained  American  citizenship,  how  did  they 
lose  it?  What  law  deprives  a citizen  of  his  citizenship 
because  he  is  so  unfortunate  as  to  have  contracted  a con- 
tagious disease?  The  fact,  if  it  be  so  that  these  relators 
are  undesirable  citizens,  is  not  germane  to  the  present 

ss Ante,  pp.  392,  393. 

56184  Fed.  322. 


Status. 


409 


controversy.  As  pointed  out  by  Judge  Hand  (173  Fed. 
326),  a woman  does  not  lose  her  citizenship  because  her 
health  is  bad  or  her  moral  character  open  to  criticism. 
Those  relators  are  not  citizens  of  the  countries  from 
which  they  came,  as  these  countries  by  the  mere  act  of 
marriage  with  an  American  citizen  terminate  their  al- 
legiance. They  are  American  citizens  or  they  are  without 
a country.  That  they  are  citizens  is  affirmed,  we  think, 

by  the  great  weight  of  authority Being  citizens 

they  cannot  be  excluded  as  aliens.” 

In  the  case  of  United  States  v.  Sprung,  decided  in  the 
Circuit  Court  of  Appeals  of  the  Fourth  Circuit,57  the  peti- 
tioner in  habeas  corpus  proceedings  based  her  claim  to  a 
discharge  on  American  citizenship  acquired  by  marriage 
to  a citizen  of  this  country.  The  majority  of  the  court 
refused  to  pass  on  that  question  as  the  executive  officers 
asserted  in  their  return  that  the  marriage  had  not  taken 
place.  Judge  Pritchard,  in  a dissenting  opinion  in  which 
he  expressed  the  view  that  a fair  hearing  had  been 
denied-,  and  that  the  marriage  had  in  fact  taken  place, 
took  up  the  question  of  law  as  to  whether  or  not  by  virtue 
thereof  the  petitioner  became  a citizen  of  the  United 
States.  The  contention  of  the  Department  was  to  the 
effect  that  she  was  an  alien  leading  an  immoral  life  and 
thus  subject  to  deportation  under  the  Act  of  1907.  Judge 
Pritchard,  referring  to  the  case  of  Leonard  v.  Grant,58 
said:  “In  that  case  it  was  held  that  an  alien  woman  be- 
comes by  that  act  a citizen  of  this  country  and  that  such 
admission  to  citizenship  has  the  same  force  and  effect  as 
if  such  woman  had  been  naturalized  by  the  judgment  of 
a competent  court.  In  that  case  it  was  held  that  the  lan- 
guage of  the  act  “might  herself  be  lawfully  naturalized” 
does  not  require  that  the  woman  shall  have  the  qualifica- 
tions of  residence,  character,  etc.,  as  in  the  case  of  admis- 
sion to  citizenship  in  a judicial  proceeding,  but  it  is  suf- 

57187  Fed.  903. 

58C.  C.  5 Fed.  11,  17. 


410  The  Exclusion  and  Expulsion  of  Aliens. 


ficient  if  she  is  of  the  class  or  race  of  persons  who  may  be 
naturalized  under  existing  laws.” 

Judge  Pritchard  cites  the  syllabus  of  a case  passed 
upon  by  the  Attorney  General  in  response  to  a letter 
from  the  Secretary  of  Commerce  and  Labor : 59  “An  alien 
prostitute  who  entered  the  United  States  and  was  found 
an  inmate  of  a house  of  ill-fame  and  practicing  prostitu- 
tion within  three  years  after  landing,  having  been  since 
lawfully  married  to  a native-born  citizen  of  the  United 
States  has  to  be  deemed  a citizen  and  cannot  be  deported 
under  the  immigration  laws  for  her  conduct  previous  to 
her  marriage.  The  words  ‘who  might  herself  be  lawfully 
naturalized’  in  the  Act  of  February  10,  1855  (c.  71,  10 
Stat.  604,  and  section  1994  Revised  Statutes),  refer  to  the 
class  or  race  who  might  be  lawfully  naturalized  and  com- 
pliance with  the  other  conditions  of  the  naturalization 
laws  is  not  required.  The  immigration  laws  have  not 
added  to  the  classes  of  persons  incapable  in  their  own 
right  of  naturalization.” 

c.  When  the  Purpose  of  the  Marriage  is  to  Avoid  De- 
portation. 

In  addition  to  holding  that  marriage  with  an  American 
citizen  left  the  political  status  of  the  applicant  for  admis- 
sion still  unchanged  and  consequently  subject  to  the  op- 
eration of  the  immigration  act,  Judge  Dodge  in  the  Ka- 
prielian  case  seems  to  have  relied  on  another  reason  for 
denying  the  writ  of  habeas  corpus.  He  states : “The  mar- 
riage alleged  in  the  petition  took  place,  if  at  all,  after  the 
order  for  the  woman’s  deportation  was  made,  pending  its 

69XXVII,  Op.  Atty.  Gen.,  p.  507,  July,  1909;  but  in  a subsequent 
opinion  rendered  in  response  to  a later  communication  from  the  Secretary  of 
Commerce  and  Labor  wherein  it  appeared  that  the  marriage  in  question  was 
colorable  the  Attorney  General  asserted  the  right  of  the  departmental  au- 
thorities to  deport  the  woman — not  because  the  so-called  marriage  was  entered 
into  with  a view  to  avoid  deportation — but  because  a formal  marriage  used 
as  a blind  cannot  effect  the  change  in  political  status  from  alienage  to 
American  citizenship.  XXVII,  Op.  Atty.  Gen.  578,  August,  1909. 


Status. 


411 


execution,  and  while  the  commissioner  held  security  for 
her  surrender  to  him  in  order  that  it  might  be  executed. 

A marriage  entered  into  under  circumstances 

such  as  are  here  disclosed  could  hardly  have  been  free 
from  intent  thereby  to  avoid  deportation  whether  other- 
wise in  good  faith  or  not.” 

Provided  that  the  marriage  actually  took  place,  it  is 
hard  to  perceive  how  the  fact  that  deportation  might  have 
been  avoided  thereby  is  in  any  way  material.  It  would 
seem  that,  according  to  the  authorities  cited,  the  marriage 
could  not  have  taken  place  without  bringing  about  that 
precise  result.  Its  performance  brought  about  a change 
in  the  political  status  of  the  petitioner  which  should  then 
and  there  have  exempted  her  from  the  operation  of  the 
immigration  law.  And  a Circuit  Court  of  Appeals  has 
so  held  in  a decision  rendered  on  an  identical  state  of 
facts.60  There  the  petitioner,  a woman  of  French  extrac- 
tion, was  held  for  deportation  by  the  immigration  officers 
portporting  to  act  under  the  authority  of  the  Act  of  1903. 
Pending  the  application  for  her  release  under  a writ  of 
habeas  corpus,  she  married  a naturalized  American  citi- 
zen. The  court  said:  “The  rule  is  well  settled  that  her 
marriage  to  a naturalized  citizen  of  the  United  States  en- 
able her  to  be  discharged.  The  status  of  the  wife  follows 
that  of  the  husband  (Rev.  Stat,  sec.  1994,  U.  S.  Comp.  St. 
1901,  p.  1268 ; Leonard  v.  Grant,  C.  C.  5 Fed.  11 ; Kelly  v. 
Owen,  7 Wall.  496,  19  Law  Ed.  283 ; United  States  v.  Kel- 
lar,  C.  C.,  13  Fed.  82 ; Ware  v.  Wisner,  C.  C.,  50  Fed.  310 • 
Broadis  v.  Broadis,  C.  C.,  86  Fed.  951),  and  by  virtue  of 
her  marriage  her  husband’s  domicile  becomes  her  domi- 
cile.”61 

eoHopkins  v.  Fachant,  130  Fed.  839. 

61  (N.  B. — If  the  immigration  authorities  had  not  found  that  an  actual 
marriage  had  taken  place,  no  legal  question  would  have  been  raised,  and 
the  court  could  not  have  had  occasion  to  pass  on  the  question  presented 
in  the  traverse  to  the  return.  See  Ex  parte  Avakian,  188  Fed.  686,  693.) 
* ‘ It  is  manifest  that  the  mere  intention  on  the  part  of  the  parties  to  remove 
the  woman  from  the  operation  of  the  immigration  laws  would  not  in  itself 


412  The  Exclusion  and  Expulsion  of  Aliens. 

(2.)  By  Birth  in  the  United  States. 

One  who  is  born  a citizen  of  the  United  States  occupies 
no  status  under  the  immigration  law;  with  reference  to 
that  law  his  political  standing  is  such,  if  not  surrendered, 
as  to  place  him  completely  beyond  the  sphere  of  opera- 
tion of  the  principles  of  any  law  applicable  exclusively 
to  aliens.  This  is,  of  course,  the  case  with  all  citizens  of 
the  United  States,  whether  their  citizenship  is  the  result 
of  birth  or  naturalization. 

The  fact  of  the  citizenship  of  any  person  seeking  admis- 
sion to  the  United  States  may  always  be  inquired  into  by 
the  immigration  authorities,  and  is  one  on  which,  when  a 
pure  question  of  fact,  their  decision  is  final  and  binding 
on  the  courts.62  The  facts  on  which  the  claim  is  based 
being  conceded,  the  administrative  finding  as  to  what 
legal  or  political  effect  these  acts  may  have  may  always 
be  inquired  into  by  the  courts.  As  has  been  seen,  the 
weight  of  judicial  authority  is  to  the  effect  that  the  ques- 
tion of  admissibility  of  the  applicant  depends  purely  on 
whether  under  the  laws  governing  citizenship  and  nat- 
uralization, considered  apart  from  the  immigration  act, 
the  political  status  claimed  exists;  while  isolated  deci- 
sions have  maintained  that  whether  or  not  citizenship  has 
been  acquired  by  naturalization  depends  on  whether  the 
facts  on  which  the  claim  of  citizenship  is  based  meet  the 

be  sufficient  to  invalidate  what  was  otherwise  a lawful  marriage,  and  the  real 
inquiry  is  whether  lack  of  intention  on  the  part  of  the  contracting  parties 
to  assume  the  rights  and  duties  incident  to  the  marriage  relation  would  in- 
validate the  marriage.  ” (XXVII,  Op.  Atty.  Gen.,  p.  578,  August,  1909.) 
With  regard  to  the  effect  of  the  marriage  of  a foreign  woman  who  has 
been  expelled  from  France  to  a citizen  of  that  country  for  the  sole  purpose 
of  acquiring  thereby  the  right  to  enter  and  remain  in  France,  M.  Martini 
says:  “This  gives  no  occasion  for  the  application  of  the  principle  ‘ Fraus 
omnia  corruvipit.’  The  public  order  will  suffer  less  thereby  than  by  seeing 
a national,  irrespective  of  the  purposes  of  his  conversion,  treated  as  if  his 
status  were  that  of  an  alien.”  (Martini,  1 ’Expulsion  des  Etrangers,  p. 
201.) 

62United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  United 
States  v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917. 


Status. 


413 


conditions  expressed  in  both  the  laws  dealing  with  the 
acquisition  of  citizenship,  and  the  admission  and  exclu- 
sion of  aliens. 

(a.)  The  Wong  Kim  Ark  Decision. 

It  is  apparent  that  the  fact  of  birth  within  the  terri- 
torial limits  and  jurisdiction  of  this  country  being  con- 
ceded by  the  immigration  officers,  citizenship  must  follow 
as  a matter  of  course,  and  that  children  thus  born,  even 
though  of  alien  parents  themselves  incapable  of  naturali- 
zation under  our  laws63  are  not  subject  to  exclusion  or  de- 
portation under  the  immigration  or  Chinese  exclusion 
acts.64  Since  the  opinion  rendered  in  the  great  case  of 
Wong  Kim  Ark65  this  general  principle  decided  therein 
has  never  been  questioned  by  the  courts. 

The  facts  in  the  case,  in  the  words  of  Mr.  Justice 
Gray,  presented  the  following  question:  “Whether  a 
child  born  in  the  United  States  of  parents  of  Chinese 
descent  who  at  the  time  of  his  birth  are  subjects  of  the 
Emperor  of  China,  but  has  a permanent  domicile  and 
residence  in  the  United  States  and  are  there  carrying 
on  business  and  are  not  employed  in  any  diplomatic  or 
official  capacity  under  the  Emperor  of  China  becomes  at 
the  time  of  his  birth  a citizen  of  the  United  States  by 
virtue  of  the  first  clause  of  the  fourteenth  amendment  of 
the  Constitution:  “All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 

63 Wong  Kim  Ark  v.  United  States,  169  U.  S.  649,  42  Law  Ed.  890. 

6*Wong  Kim  Ark,  supra;  United  States  v.  Sibray,  178  Fed.  150;  Lee 
Sing  Far  v.  United  States,  94  Fed.  836;  In  re  Giovanna,  93  Fed.  660;  In 
re  Wong  Kim  Ark,  71  Fed.  382;  Gee  Fook  Sing  v.  United  States,  49  Fed. 
146;  In  re  Wy  Shing,  36  Fed.  553;  In  re  Yung  Sing  Hee,  36  Fed.  437; 
Ex  parte  Chin  King,  35  Fed.  354;  In  re  Look  Tin  Sing,  21  Fed.  905;  Gee 
Fook  Sing  v.  United  States,  7 U.  S.  App.  27;  In  re  Yung  Sing  Hee,  13 
Sawyer  482;  Ex  parte  Chin  King,  13  Sawyer  777;  State  v.  Ah  Chew,  16 
Nev.  50. 

65  Supra. 


414  The  Exclusion  and  Expulsion  of  Aliens. 

they  reside.”  The  question  was,  as  we  have  seen,  de- 
cided in  the  affirmative  over  the  dissent  of  Chief  Justice 
Fuller  and  Mr.  Justice  Harlan. 

Since  the  rendition  of  that  judgment  cases  involving  the 
birth  of  aliens  in  this  country  have  come  up  for  adminis- 
trative determination  where  the  facts  involved  were  pos- 
sibly such  as  the  Supreme  Court  may  not  have  had  in 
view  while  discussing  the  great  principles  of  the  com- 
mon and  constitutional  law  adverted  to  in  the  course  of 
that  decision.  These  cases  involve  the  following  point  of 
law:  What  is  the  political  status  of  a child  born  of  an 
alien  mother  while  the  latter,  after  having  been  excluded 
by  the  immigration  authorities  from  entering  the  United 
States,  is  detained  for  deportation  in  execution  of  the 
excluding  decision?  The  vital  question  is  whether  a child 
is  under  these  conditions  born  in  the  United  States  and 
subject  to  the  jurisdiction  thereof.  This  question  in- 
volves, it  would  seem,  a new  consideration  of  the  words  of 
the  fourteenth  amendment  to  the  Constitution,  and  in  pro- 
ceeding to  this  analysis  we  can  do  no  better  than  to  at- 
tempt to  follow  the  path  hewn  out  by  that  great  judge 
who  rendered  the  decision  in  the  case  of  Wong  Kim  Ark. 

After  pointing  out  that  the  constitution  nowhere  de- 
fines the  words  “citizens  of  the  United  States”  except  by 
the  affirmative  declaration  contained  in  the  fourteenth 
amendment  that  “all  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof  are 
citizens  of  the  United  States”  the  court  states  that  in  this 
as  in  other  respects  the  Constitution  “must  be  interpreted 
in  the  light  of  the  common  law  the  principles  and  history 
of  which  were  familiarly  known  to  the  framers  of  the 

Constitution.” “The  fundamental  principle  of  the 

common  law  with  regard  to  English  nationality  was  birth 
within  the  allegiance,  also  called  ‘ligealty/  ‘obedience,’ 
‘faith’  or  ‘power’  of  the  King.  The  principle  embraced 
all  persons  born  within  the  King’s  allegiance  and  subject 
to  his  protection.  Such  allegiance  and  protection  were 


Status. 


415 


neutral and  were  not  restricted  to  natural-born  sub- 

jects and  naturalized  citizens  or  to  those  who  had  taken 
an  oath  of  allegiance;  but  were  predicable  of  aliens  in 
amity,  so  long  as  they  were  within  the  Kingdom.”  The 
children  of  ambassadors,  however,  were  excepted,  not 
being  born  within  the  allegiance  of  the  King  but,  on  the 
contrary,  within  that  of  the  sovereign  whose  person  is 
represented  by  the  parent.  This,  says  the  court,  is  a 
“fundamental  principle,”  and  then  points  out  that  the 
English  law  of  the  past  three  centuries  and  of  to-day  is 
that  aliens  residing  in  the  dominions  possessed  by  the 
Crown  of  England  were  within  the  allegiance,  the  obedi- 
ence, the  faith  or  loyalty,  the  protection,  the  power,  the 
jurisdiction  of  the  English  sovereign ; and,  therefore, 
every  child  born  in  England  of  alien  parents  was  a nat- 
ural-born subject,  unless  the  child  of  an  ambassador  or 
other  diplomatic  agent  of  a foreign  state,  or  of  an  alien 
enemy  in  hostile  occupation  “of  the  place  where  the  child 
was  born.  The  same  rule  was  in  force  in  all  of  the  Eng- 
lish colonies  upon  this  continent  down  to  the  time  of  the 
Declaration  of  Independence,  and  in  the  United  States 
afterwards,  and  continued  to  prevail  under  the  constitu- 
tion as  originally  established.  Mr.  Justice  Story  is  cited 
to  the  effect  that  “allegiance  by  birth  is  that  which  arises 
from  being  born  within  the  dominions  and  under  the  pro- 
tection of  a particular  sovereign,  Two  things  usually  con- 
cur to  create  citizenship : first,  birth  locally  within  the  do- 
minions of  the  sovereign;  and,  secondly,  birth  within  the 
protection  and  obedience  or  in  other  words,  within  the 
ligeance  of  the  sovereign.  That  is  the  party  must  be  born 
within  a place  where  the  sovereign  is  at  the  time  within 
the  full  possession  and  exercise  of  his  power,  and  the  party 
must  also  at  his  birth  derive  protection  from,  and  conse- 
quently owe  obedience  or  allegiance  to,  the  sovereign  as 
such,  de  facto  ” The  court  cites  28  U.  S.,  3 Peters  164 : 67 


677  Law  Ed.  640. 


416  The  Exclusion  and  Expulsion  of  Aliens. 


“Nothing  is  better  settled  at  the  common  law  than  the 
doctrine  that  the  children  even  of  aliens  born  in  a country 
while  the  parents  are  resident  there  under  the  protection 
of  the  government  and  owing  a temporary  allegiance 
thereto,  are  subjects  by  birth.”  Mr.  Justice  Story  is 
again  quoted  as  saying  that  “in  respect  to  residents  in 
different  countries  or  sovereignties”  there  are  certain  prin- 
ciples which  have  been  generally  recognized  by  tribunals 
administering  public  law  (adding,  in  later  editions,  “and 
the  law  of  nations”)  as  of  unquestionable  authority,  and 
stated,  as  the  first  of  those  principles,  “that  persons  who 
are  born  in  a country  are  generally  deemed  to  be  citizens 
and  subjects  of  that  country.”  68 

Many  additional  authorities  in  support  of  the  above 
principle  are  quoted  or  cited  by  the  court.  Adverting  to 
the  contention  of  counsel  that  the  true  rule  of  interna- 
tional law  was  the  jus  sanguinis,  rather  than  the  jus  soli, 
the  court  observes  that  “there  is  little  ground  for  the 
theory  that  at  the  time  of  the  adoption  of  the  fourteenth 
amendment  of  the  Constitution  of  the  United  States  there 
was  any  settled  and  definite  rule  of  international  law  gen- 
erally recognized  by  civilized  nations,  inconsistent  with 
the  ancient  rule  of  citizenship  by  birth  within  the  do- 
minion. Nor  can  it  be  doubted,”  the  court  adds,  “that  it  is 
the  inherent  right  of  every  independent  nation  to  deter* 
mine  for  itself,  and  according  to  its  own  constitution  and 
laws,  what  classes  of  persons  shall  be  entitled  to  its  citi- 
zenship;” and,  after  reviewing  the  laws  passed  by  this 
country  dealing  with  the  acquisition  of  citizenship  by 
foreigners,  that  “there  is  nothing  to  countenance  the 
theory  that  a general  rule  of  citizenship  by  blood  or  de- 
scent has  displaced  in  this  country  the  fundamental  rule 
of  citizenship  by  birth  within  its  sovereignty,” 

The  main  purpose  of  the  words  “all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  juris- 

esStory,  Conflict  of  Laws,  Par.  28. 


Status. 


417 


diction  thereof,  are  citizens  of  the  United  States  and  of 
the  state  wherein  they  reside”  in  the  first  section  of  the 
fourteenth  amendent  “doubtless  was,  as  has  been  often 
recognized  by  this  court,  to  establish  the  citizenship  of 
free  negroes  which  had  been  denied  in  the  opinion  deliv- 
ered by  Chief  Justice  Taney,  in  Dred  Scott  v.  San- 
ford,69 and  to  put  it  beyond  doubt  that  all  blacks  as  well 
as  whites,  born  or  naturalized  within  the  jurisdiction  of 
the  United  States  are  citizens  of  the  United  States.  But 
the  opening  words  ‘All  persons  born’  are  general,  not  tu 
say  universal,  restricted  only  by  place  and  jurisdiction, 
and  not  by  color  and  race ” The  court  calls  atten- 

tion to  the  words  of  Mr.  Justice  Swayne  in  the  dissent- 
ing opinion  in  The  Slaughter  House  cases : 70  “by  ‘any  per- 
son’ was  meant  all  persons  within  the  jurisdiction  of  the 
state.” 

Considerable  attention  was  given  to  explaining  the 
meaning  of  the  term  “and  subject  to  the  jurisdiction 
thereof.”  The  court  cites  with  approval  the  dissenting 
opinion  in  the  case  of  Elk  v.  Wilkins,71  in  which  reference 
was  made  to  the  Civil  Rights  Act  of  1866,  which  was  suc- 
ceeded by  the  fourteenth  amendment,  “declaratory  in 
form,  and  enabling  and  extending  in  effect.”  72  That  dis- 
sent proceeds:  “Beyond  question,  by  that  act  national 
citizenship  was  conferred  directly  upon  all  persons  in  this 
country,  of  whatever  race  (excluding  only  Indians  not 
taxed),  who  were  born  within  the  territorial  limits  of  the 
United  States,  and  were  not  subject  to  any  foreign 
power.”  73  “The  real  object  of  the  fourteenth  amendment 
of  the  Constitution,”  the  court  proceeds,  “in  qualifying 
the  words  ‘all  persons  born  in  the  United  States’  by  the 
addition  ‘and  subject  to  the  jurisdiction  thereof’  would 

6960  U.  S.,  19  How.  393,  15  Law  Ed.  391. 

7083  U.  S.,  16  Wall.  128,  129,  21  Law  Ed.  425,  426. 

71112  U.  S.  94,  28  Law  Ed.  643. 

72 Wong  Kim  Ark,  p.  676. 

73pp.  681,  682. 


418  The  Exclusion  and  Expulsion  of  Aliens. 


appear  to  have  been  to  exclude  by  the  fewest  and  fittest 
words  (besides  children  of  members  of  the  Indian  tribes 
standing  in  a peculiar  relation  to  the  National  Govern- 
ment, unknown  to  the  common  law)  the  two  classes  of 
cases — children  born  of  alien  enemies  in  hostile  occupa- 
tion, and  children  of  diplomatic  representatives  of  a for- 
eign state — both  of  which,  as  has  already  been  shown 
by  the  law  of  England,  and  by  our  own  law  from  the  time 
of  the  first  settlement  of  the  English  colonies  in  America, 
had  been  recognized  exceptions  to  the  fundamental  rule 
of  citizenship  by  birth  within  the  country.”  “It  is  im- 
possible to  construe  the  words  ‘subject  to  the  jurisdiction 
thereof  in  the  opening  sentence  as  less  comprehensive 
than  the  words  ‘within  its  jurisdiction’  in  the  concluding 
sentence  of  the  same  section,  or  to  hold  that  persons 
‘within  the  jurisdiction’  of  one  of  the  states  of  the  Union 
are  not  ‘subject  to  the  jurisdiction  of  the  United 
States.’  ” 74  The  result  of  the  authorities  cited  leads  the 
court,  in  its  own  words,  “irresistibly”  to  the  conclusion 
that  “the  fourteenth  amendment  affirms  the  ancient  and 
fundamental  rule  of  citizenship  by  birth  within  the  terri- 
tory, in  the  allegiance  and  under  the  protection  of  the  coun- 
try, including  all  children  here  born  of  resident  aliens” 
with  the  exceptions  already  mentioned.  And  the  words 
of  Mr.  Webster,  when  Secretary  of  State,  in  his  report  to 
the  President  on  Thrasher’s  case,  in  1851.  since  repeated 
by  the  Supreme  Court,  are  cited  in  the  course  of  the  con- 
clusion: “It  can  hardly  be  denied  that  an  alien  is  com- 
pletely subject  to  the  political  jurisdiction  of  the  country 
in  which  he  resides — seeing  that”  (and  now  come  Mr. 
Webster’s  words)  “independently  of  a residence  with  an 
intention  to  continue  such  residence;  independently  of 
any  domiciliation ; independently  of  the  taking  of  any  oath 
of  allegiance  or  of  renouncing  of  any  former  allegiance, 
it  is  well  known  that  by  the  public  law  an  alien,  or  a 
stranger  born,  for  so  long  a time  as  he  continues  within 
. 7*p.  687. 


Status. 


419 


the  dominions  of  a foreign  government,  owes  obedience 
to  the  laws  of  that  government,  and  may  be  punished  for 
treason,  or  other  crimes,  as  a native  born  subject  might 
be.”  Finally,  after  stating  that  the  fourteenth  amend- 
ment contemplates  two  sources  of  citizenship  only,  birth 
and  naturalization,  the  court  observes:  “Citizenship  by 
naturalization  can  only  be  acquired  by  naturalization  un- 
der the  authority  and  in  the  forms  of  law.  But  citizenship 
by  birth  is  established  by  the  mere  fact  of  birth  under 
the  circumstances  defined  in  the  Constitution.  Every  per- 
son born  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  becomes  at  once  a citizen  of  the  United 
States  and  needs  no  naturalization.”  75 

In  Van  Dyne  on  Citizenship,  p.  24,  the  learned  author, 
after  citing  a number  of  decisions  both  judicial  and  ad- 
ministrative to  the  effect  that  citizenship  is  acquired  by 
birth  in  this  country,  closes  with  an  analysis  of  the  Wong 
Kim  Ark  case  at  the  end  of  which  he  states:  “The  fore- 
going establishes,  beyond  controversy,  that,  by  our  law, 
children  born  to  foreigners  in  the  United  States  are  citi- 
zens of  the  United  States.” 

But  can  it  be  said  that  the  great  principles  enunciated 
in  the  Wong  Kim  Ark  decision  apply  to  the  peculiar  situa- 
tion under  consideration?  This  would  seem  to  depend 
wholly  on  whether  or  not  the  child  born  of  an  alien  woman 
held  in  detention  for  deportation  is  born,  to  use  the  words  of 
Mr.  Justice  Gray,  “under  the  circumstances  defined  in 
the  Constitution,”  and  these  circumstances  are  defined 
to  be  “in  the  United  States  and  subject  to  the  jurisdiction 
thereof.”  And  such  a person  is  declared  by  the  fourteenth 
amendment  to  be  a citizen  of  the  United  States  and  of  the 
state  wherein  he  resides. 

Before  proceeding  to  a consideration  of  whether  or  not 
the  child  is  born  “in  the  United  States  and  subject  to  the 
jurisdiction  thereof”  it  may  be  well  to  consider  the  signifi- 


75p.  702. 


420  The  Exclusion  and  Expulsion  of  Aliens. 

cance  of  the  additional  phrase  “citizens  of  the  United 
States  and  of  the  state  wherein  they  reside.”  Does  this 
phrase  mean  that  the  citizenship  granted  must  include 
in  citizenship  in  the  United  States  citizenship  in  a state? 
and,  if  so,  is  residence  necessary? 

In  other  words  in  order  to  acquire  United  States  citizen- 
ship under  this  section  is  it  necessary  that  birth  shall  have 
taken  place  in  one  of  the  states  of  the  Union?  With  re- 
spect to  the  significance  of  the  word  “reside,”  as  used  in 
this  connection,  it  is  apparent  that,  if  it  applies  at  all  to 
the  case  of  citizenship  acquired  by  birth,  it  can,  in  the 
nature  of  things,  apply  only  to  the  parents  of  the  child; 
but  the  Constitution  does  not  say  so,  and  such  a construc- 
tion would  be  at  plain  variance  with  the  obvious  purpose 
of  the  amendment  to  bring  about  the  existence  of  the 
political  status  by  the  mere  fact  of  birth.  The  word 
“reside”  is  plainly  used  in  connection  with  the  acquisition 
of  citizenship  in  the  state  in  which  the  birth  occurs.  The 
purpose  of  this  language  is  explained  by  Mr.  Justice  Mil- 
ler in  The  Slaughter  House  Cases,76  where,  in  treating  of 
this  clause  of  the  fourteenth  amendment,  he  says:  “The 
distinction  between  citizenship  of  the  United  States  and 
citizenship  of  a state  is  clearly  recognized  and  established. 
Not  only  may  a man  be  a citizen  of  the  United  States  with- 
out being  a citizen  of  a state,  but  an  important  element  is 
necessary  to  convert  the  former  into  the  latter.  He  must 
reside  within  the  state  to  make  him  a citizen  of  it,  but 
it  is  only  necessary  that  he  should  be  born  or  naturalized 
in  the  United  States  to  be  a citizen  of  the  Union.”  77  The 
effect  of  the  phrase  would  seem  to  be  no  more  than  to 
provide  that  birth  in  the  United  States  under  the  cir- 
cumstances set  out  in  the  fourteenth  amendment,  besides 
making  the  person  so  born  a citizen  of  the  United  States, 
confers  upon  him  citizenship  in  any  state  of  the  Union, 
provided  he  takes  up  his  residence  in  that  state. 

76 Ante,  p.  417. 

77Slaughter  House  Cases,  83  U.  S.,  16  Wall.  73,  74,  21  Law  Ed.  408. 


Status. 


421 


( b. ) Children  of  Aliens  Born 

a.  While  in  Detention  Prior  to  Admission. 

That  a child  born  in  detention  pending  the  deportation 
of  the  alien  mother  is  born  in  the  United  States  cannot  be 
denied.  That  both  mother  and  child  are  subject  to  the 
jurisdiction  of  immigration  officers  and  to  criminal  and 
civil  process;  that  they  can  claim  police  protection,  the 
protection  of  the  constitutional  guarantee  that  they  shall 
not  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law,  and  are,  hence,  in  a limited  sense  subject  to 
the  jurisdiction  of  the  United  States,  is  equally  incontro- 
vertible. The  question  can,  perhaps,  be  advantageously 
examined  by  considering  the  cases  of  the  mother  and  child 
separately. 

The  mother,  an  alien,  seeks  admission  into  the  United 
States,  and,  because  of  disabilities  which  exclude  her  from 
admission  under  the  immigration  laws  is  refused  entry 
and  held  for  deportation.  The  situation  presented  is  an 
offer  of  allegiance  by  an  alien  and  its  rejection  by  the 
United  States  Government,  the  sovereign  to  whom  the 
offer  is  made.  The  fact  that  pending  the  execution  of  the 
order  of  deportation  the  woman  is,  from  motives  purely 
of  humanity,  afforded  hospital  treatment  under  the  tem- 
porary protection  of  the  United  States  in  no  way  consti- 
tutes an  indication  that  the  allegiance  offered  is  or  will  be 
accepted,  and  is  not  to  be  construed  as  a mark  of  that 
protection  offered  by  a sovereign  state  to  those  resident, 
even  temporarily,  within  its  dominions.  That  the  woman 
is  not  under  these  conditions  even  a resident  of  this  coun- 
try, is  clear.78  In  this  case  no  question  of  citizenship 
arises;  the  only  issue  involved  is  her  right  to  enter  the 
United  States,  and  this,  because  she  is  an  alien,  is  deter- 
mined exclusively  by  the  provisions  of  the  immigration 
law. 

78Zartarian  v.  Billings,  204  U.  S 170.  51  Law  Ed.  428;  United  States  v. 
Rodgers,  182  Fed.  274. 


422  The  Exclusion  and  Expulsion  of  Aliens. 

A very  different  question  is  presented  by  the  case  of  the 
child.  Never  having  existed  beyond  the  territorial  limits 
of  the  United  States,  before  coming  within  what,  for  the 
present,  we  may  designate  as  the  limited  jurisdiction  of 
the  United  States,  no  question  of  its  alienage,  in  the  sense 
of  allegiance  to  any  foreign  power,  can  arise.  Conse- 
quently it  can  scarcely  be  said  that  with  reference  to  the 
child  the  offer  of  allegiance  and  subsequent  refusal  on  the 
part  of  the  Government  which  occurred  in  the  mother’s 
case  has  taken  place,  or  that  its  situation  in  detention  is 
“as  if  it  had  never  been  removed  from  the  vessel.”  If  the 
child  is  to  be  considered  an  alien,  then,  to  be  sure,  the 
mere  fact  of  its  presence  on  shore  can  vest  it  with  no  right 
to  enter  which  it  would  not  have  had,  if  its  birth  had 
taken  place  on  the  vessel.  On  the  other  hand,  the  fact  that 
the  mother  is  debarred  as  an  alien  from  entering  this 
country  could  not,  it  would  seem,  be  a bar  to  the  acquisi- 
tion of  citizenship  by  the  child  provided  that  the  latter 
could  be  under  such  circumstances  deemed  to  be  born 
subject  to  the  jurisdiction  of  the  United  States  as  the 
words  are  used  in  the  Constitution.  If  the  child  is  sub- 
ject to  deportation  it  can  only  be  on  the  ground  that  it  is 
an  alien ; and  to  be  found  to  be  an  alien  it  must  be  found 
not  to  have  been  born  in  and  subject  to  the  jurisdiction  of 
the  United  States;  and  if  found  to  have  been  born  not 
subject  to  the  jurisdiction  of  the  United  States  this  con- 
clusion must  be  based  on  some  theory  other  than  that  the 
child  was  at  any  time  physically  subject  to  the  jurisdic- 
tion of  some  other  power. 

At  first  glance  a comparatively  simple  solution  of  the 
question  presents  itself  with  inviting  insistence.  It  is  easy 
to  suggest  that  since  the  allegiance  of  the  mother  has  never 
been  accepted  her  situation  is  as  if  she  had  never  entered 
the  territorial  limits  of  the  United  States,  and  the  child’s 
political  status  is  what  it  would  have  been  had  the  birth 
occurred  at  sea  or  elsewhere  outside  the  jurisdiction  of 
this  country.  But  we  a^e  at  once  confronted  with  the 


Status. 


423 


principle  so  forcibly  expounded  and  so  often  reiterated 
in  the  Wong  Kim  Ark  case  that  under  the  common  law, 
international  law,  and  the  fourteenth  amendment  of  the 
Constitution  the  place  where  the  birth  actually  took  place 
is  one  of  the  two  great  factors  on  which  American  citizen- 
ship depends.  It  is  impossible  to  overlook  it  or  to  attempt 
to  supplant  it  by  dint  of  legal  fiction.  The  solution  of 
the  question  would  seem  to  turn  on  the  meaning  to  be  at- 
tributed to  the  words  “subject  to  the  jurisdiction.” 

Its  purpose  was  stated  in  the  Wong  Kim  Ark  case  to  be 
to  exclude  in  the  fewest  and  fittest  words  possible  the  chil- 
dren of  members  of  Indian  tribes,  the  children  of 
aliens  in  hostile  occupation,  and  of  diplomatic  rep- 
resentatives of  a foreign  state — recognized  exceptions 
to  the  “fundamental  rule  of  citizenship  by  birth 
within  the  country.”  This  fundamental  rule  was 
then  designated  as  “birth  within  the  allegiance  also  called 
‘ligealty,’  ‘obedience,’  ‘faith,’  or  ‘power’  of  the  King,  and 
embraced,  it  is  said,  all  persons  born  within  the  King’s 
allegiance  and  subject  to  his  protection.  Allegiance,  obe- 
dience, faith,  loyalty,  protection,  power,  and  jurisdiction 
are  classed  together  apparently  as  synonymous  terms. 
“Every  citizen  or  subject  of  another  country,  while  domi- 
ciled here,  is  within  the  allegiance  and  the  protection,  and 
consequently  subject  to  the  jurisdiction  of  the  United 
States.”  It  is  of  interest  to  note  the  frequency  with 
which  the  terms  “residence”  and  “domicile”  are  used  in 
connection  with  “allegiance”  and  “subject  to  the  jurisdic- 
tion.” Justice  Harlan  is  quoted  as  saying  in  the  dissent- 
ing opinion  in  Elk  v.  Wilkins,79  that  an  Indian  “having 
severed  himself  from  his  tribe  and  become  a bona  fide 
resident  of  a state  and  thereby  become  subject  to  the  jur- 
isdiction of  the  United  States,  within  the  meaning  of  the 
fourteenth  amendment”  and  again : “The  amendment  in 
clear  words  and  manifest  intent  includes  the  children  born 


mi2  U.  S.  94,  28  Law  Ed.  643. 


424  The  Exclusion  and  Expulsion  of  Aliens. 


within  the  territory  of  the  United  States  of  all per- 
sons  domiciled  within  the  United  States’’  “Chinese 

persons  are  entitled  to  the  protection  of  and  owe  alle- 
giance to  the  United  States  so  long  as  they  are  permitted 
by  the  United  States  to  reside  here;  and  are  ‘subject  to  the 
jurisdiction  thereof’  in  the  same  sense  as  all  other  aliens 
residing  in  the  United  States.” 

Finally,  in  the  last  paragraph  of  the  opinion  the  court 
draws  attention  to  the  fact  that  the  parents  of  the  peti- 
tioner had  at  the  time  of  his  birth  a permanent  domicile 
and  residence  in  the  United  States  and  were  carrying  on 
business  there.793. 

From  the  language  and  reasoning  in  the  Wong  Kim  Ark 
decision  it  is  difficult  to  dissociate  the  words  “subject 
to  the  jurisdiction”  from  the  idea  of  unqualified  subjec- 
tion to  the  national  protection.  As  before  stated,  an 
alien  woman  held  for  deportation  is  in  no  sense  a resident 
of  this  country,  and  the  Supreme  Court,  not  once  but 
several  times,  uses  language  which  indicates  strongly  that 
residence,  no  matter  how  transitory  or  how  brief  must 
exist  in  order  to  give  rise  to  allegiance.  “Allegiance  and 
protection,”  said  Chief  Justice  Waite,  in  the  case  of 
Minor  v.  Happersett,80  “are  reciprocal  obligations.  The 
one  is  a compensation  for  the  other ; allegiance  for  protec- 
tion, and  protection  for  allegiance.”  By  refusing  the 
alien’s  offer  of  allegiance  the  United  States  indicates  not 
only  its  unwillingness  to  extend  its  protection  but  actu- 
ally refuses  to  do  so.  To  refuse  its  protection  is  to  refuse 
to  the  extent  that  the  dictates  of  national  justice  will 
allow,  the  benefits  of  the  machinery  by  which  protection 
is  afforded;  in  a word,  the  full  complement  of  the  laws 
which,  when  enforced,  constitute  the  physical  manifesta- 
tions of  the  “jurisdiction”  of  the  state.  In  the  case  of  the 
child,  as  in  that  of  the  mother,  presence  under  detention 
does  not  constitute  residence;  and,  therefore,  its  relations 

79altalics  in  last  three  paragraphs  ours. 

8088  U.  S.,  21  Wall.  162,  22  Law  Ed.  627. 


Status. 


425 


to  the  United  States  do  not  partake  of  the  nature  of  al- 
legiance, and  consequently  fall  short  in  laying  the  founda- 
tion for  the  existence  of  that  protection  without  which 
the  child  could  not,  it  would  seem,  be  correctly  said  to  be 
“subject  to  the  jurisdiction  of  the  United  States.” 

The  above  must  not  be  taken  as  intending  to  convey  the 
idea  that  allegiance  cannot  exist  without  residence.  A 
sovereign  state  has  the  right  to  designate  who  shall  be- 
come its  citizens,  and  under  what  circumstances  the  privi- 
lege of  citizenship  shall  be  bestowed.  We  have  already 
seen  that,  under  the  Act  of  1855,  a foreign  woman  can  by 
marriage  enter  into  a condition  of  allegiance  to  the  United 
States  even  though  she  has  never  entered  the  country. 
“The  acquisition,”  says  Mr.  Dicey,81  “of  nationality  by 
descent  is  foreign  to  the  principles  of  the  common  law, 
and  is  based  wholly  upon  statutory  enactments.” 

It  is  only  where  allegiance  is  predicated  of  an  individual 
within  the  territorial  limits  of  a foreign  sovereign  state 
that  residence  appears  to  be  necessary.  This  is  the  tem- 
porary allegiance  owed  by  strangers  sojourning  in  a for- 
eign state  in  return  for  the  protection  which  they  enjoy 
by  the  mere  fact  of  having  placed  themselves  under  the 
sovereign’s  jurisdiction.  And  it  is  thought  that  this  pro- 
tection must  exist  even  though  the  presence  of  the  alien 
within  the  territory  of  a state  involves  a breach  of  the 
municipal  law  of  that  country  at  the  time  of  entry. 

b.  Of  Aliens  Unlawfully  Kesiding  in  the 
United  States. 

This  point  may  be  considered  in  connection  with  the 
following  state  of  facts : Two  aliens,  man  and  wife,  both 
excludable  under  the  immigration  laws,  succeed  in  evad- 
ing the  watchfulness  of  the  immigration  officials,  and  in 
taking  up  their  abode  in  the  United  States  After  living 
here  for  a year  a son  is  born  to  them.  Their  unlawful 
presence  becomes  known  to  the  immigration  officers,  and 

siConf.  Laws,  p.  741. 


426  The  Exclusion  and  Expulsion  of  Aliens. 


together  with  their  child  they  are  arrested  on  a warrant  of 
the  Secretary  of  Commerce  and  Labor  ordering  their  de- 
portation. The  facts  are  admitted.  Does  the  immigration 
law  apply  to  the  son  born  in  this  country?  Or,  in  other 
words,  is  the  child  under  these  conditions  born  in,  and 
subject  to  the  jurisdiction  of  the  United  States?  It  is  ad- 
mitted that  at  the  time  of  the  arrest  the  parents  had  come 
to  this  country  with  the  intention  of  making  it  their  home, 
and  actually  established  their  home  here  in  pursuance  of 
their  original  design.  In  the  words  of  Mr.  Justice  Gray, 
every  subject  of  a foreign  country  while  domiciled  here  is 
within  the  allegiance  and  protection,  and  consequently 
subject  to  the  jurisdiction  of  the  United  States.  Does  the 
fact  that  the  parents  belong  to  a class  of  aliens  whose  alle- 
giance the  United  States  does  not  desire  and  whose  en- 
trance into  the  United  States  is  forbidden  by  law  affect  the 
political  status  of  the  child?  Obviously  not,  unless  the 
bare  legal  prohibition  suffices  to  prevent  the  par- 
ents from  acquiring  a residence  or  domicile — it  is 
immaterial  which — in  this  country.  True,  the  parents 
never  acquired  a municipal  status  by  virtue  of  or  under 
the  immigration  law;  and  they  never  acquired  a lawful 
domicile  in  the  sense  that  they  were  never  entitled  to  enter 
for  the  purpose  of  establishing  a home.  But  the  fact  re- 
mains that  they  entered  this  country  and  proceeded  to 
reside  here,  until  their  arrest,  in  enjoyment  of  every 
benefit  which  the  law  of  the  United  States  confers  on  per- 
sons lawfully  resident  here,  and  under  the  same  duty  to 
carry  out  their  correlative  obligations.  Their  temporary 
allegiance  to  the  United  States  was  complete  and  gave  rise 
to  reciprocal  protection  on  the  part  of  the  state,  unaffected 
by  the  fact  that  in  order  to  enjoy  and  exercise  the  rights 
and  duties  incident  thereto  they  had  violated  the  immigra- 
tion law. 

This  does  not  mean  that  an  alien  may  continue  in  a po- 
sition of  allegiance  to  the  sovereign  against  that  sover- 
eign’s will.  The  state  may  prevent  the  existence  of  the 


Status. 


427 


condition,  by  making  it  impossible  for  the  alien  to  acquire 
a residence  within  its  territorial  limits,  or,  if  the  condi- 
tion exists  may  withdraw  its  protection  by  expelling  the 
foreigner.  But  as  certain  as  is  the  fact  that  any  such 
alien  resides  within  the  limits  of  a given  sovereign  state, 
just  so  certain  is  it  that  the  mutual  relation  of  allegiance 
and  protection  exists.  To  deny  this  would  be  to  deny  the 
fact  of  sovereignty  itself,  and  the  existence  of  a sovereign 
right,  which,  like  the  inherent  right  of  an  independent 
member  of  the  family  of  nations  to  expel  or  exclude 
aliens,  cannot,  in  the  words  of  Mr.  Justice  Field,  “be 
granted  away  or  restrained  on  behalf  of  any  one.”  The 
case  under  discussion  would  seem  to  differ  from  that  of 
the  child  is  born  in  detention  in  this : that  the  latter  at  the 
time  of  his  birth  is  not  residing  nor  is  his  mother  residing 
in  the  United  States,  and,  therefore,  he  is  not  born  in  al- 
legiance to  or  subject  to  the  jurisdiction  thereof;  while 
the  child  born  of  alien  parents  who,  though  under  the 
immigration  law  they  have  no  right  to  do  so  and  are  sub- 
ject at  any  time  to  deportation  thereunder,  are  neverthe- 
less residing  in  the  United  States  and  owe  temporary  al- 
legiance thereto,  is  necessarily  born  in  allegiance  to,  and, 
therefore,  is  a citizen  of  this  country. 

III.  The  Status  of  Domiciled  Aliens. 

A.  In  General. 

The  question  whether  the  acquisition  by  aliens  of  a 
domicile  in  this  country  affects  as  to  them  the  operation 
of  the  provisions  in  the  immigration  laws  dealing  with  the 
exclusion  or  expulsion  of  foreigners  is  one  which,  ever 
since  the  decision  in  the  case  of  Taylor  v.  United  States,82 
rendered  on  January  16,  1907,  has  given  rise  to  numerous 
and  conflicting  decisions  by  those  courts  which  have  had 
occasion  to  render  opinions  thereon.  The  issue  is  most 
often  presented  in  connection  with  the  claim  of  the  right 
to  enter  made  by  an  alien  who,  after  having  established 
82152  Fed.  1. 


428  The  Exclusion  and  Expulsion  of  Aliens. 

Lis  domicile  here,  leaves  the  United  States,  animo  rever- 
tendi , and  on  his  return  is  refused  admission  by  the  im- 
migration authorities  because  found  at  the  time  to  be  suf- 
fering with  some  disability  which,  were  he  attempting 
to  enter  for  the  first  time  in  the  capacity  of  a foreign 
immigrant  seeking  to  make  this  country  his  home,  would 
be  cause  for  his  exclusion  under  the  immigration  act. 
The  basis  of  the  claim  is,  not  that  the  applicant  is  not  an 
alien,  or  that  he  is  not  suffering  with  the  defect  found  by 
the  officials  to  exist,  for  these  are  findings  of  fact  into 
which  the  courts  have  not  the  right  to  inquire,  but  that, 
having  already  established  his  home  here,  he  is  not  an  im- 
migrant, and  that  consequently  the  immigration  acts 
have  no  application  to  his  case. 

The  soundness  of  this  contention  had  up  to  the  render- 
ing of  the  decision  in  the  Taylor  case,83  been  continually 
sustained  by  the  courts ; and,  in  that  case,  the  precise  point 
of  the  right  of  the  domiciled  alien  to  return  unimpeded 
by  the  restrictions  of  the  immigrant  Act  of  1903  was  not 
presented  for  judicial  determination.  The  question  at 
issue  was  whether,  under  the  appropriate  sections  of  the 
Act  of  March  3,  1903,  the  captain  of  a vessel  was,  while  in 
an  American  port,  responsible  for'  the  desertion  and  es- 
cape to  American  soil  of  an  alien  member  of  his  crew. 
It  was  contended  that  an  alien  seaman  was  not  an  immi- 
grant, and  that  the  act  only  penalized  negligence  on  the 
part  of  the  captain  in  permitting  alien  immigrants  to  land 
without  inspection  by  the  immigration  authorities;  but 
the  court  held  that  since  the  act  designated  the  persons 
whose  landing  was  not  to  be  permitted  by  the  person  in 
control  of  the  vessel  as  “aliens,”  whereas,  in  the  preced- 
ing acts,  they  had  been  designated  as  “alien  immigrants,” 
the  provision  must  necessarily  apply  to  all  aliens,  whether 
immigrants  or  not.  This  decision  was  later  reversed  by 
the  Supreme  Court  of  the  United  States.84 

83  Supra. 

84Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


Status. 


429 


Tlie  distinction  between  alien  immigrants  and  other 
classes  of  foreigners  coming  to  or  present  in  the  United 
States  had  always  been  recognized  by  the  courts  and  the 
Department  of  Justice,  and  the  fact  that  the  former  occu- 
pied a different  position  from  the  latter  under  earlier 
acts  had  been  as  freely  conceded.85  Immigration  was  de- 
fined as  the  act  of  coming  to  a country  with  the  intention 
of  residing  there,86  and  it  had  been  held  that  an  alien  who 
had  by  mistake  been  carried  from  a foreign  port,  and  while 
at  a port  of  the  United  States  merely  as  one  of  the  points 
of  the  round  trip  home,  was  not  in  this  country  as  an 
immigrant,  and,  therefore,  not  within  the  operation  of  the 
Act  of  March  3,  1891.87 

As  stated  by  the  court  in  the  case  of  United  States  v. 
Nakashima,88  “the  Act  of  1891  had  uniformly  been  held 
to  apply  solely  to  alien  immigrants,  and  not  to  affect  the 
rights  of  resident  aliens.”  The  fact  that  the  judge  who 
rendered  the  opinions  in  two  of  the  cases  most  frequently 
cited  to  this  effect  was  the  first  to  enunciate  the  new  doc- 
trine which  arose  with  the  enactment  of  the  Act  of  March 
3,  1903,  namely,  that  the  substitution  of  the  word  “aliens” 
in  that  act  for  “alien  immigrants”  in  certain  sections  of 
prior  acts  included  in  its  operation  all  aliens,89  gives  his 
decisions  under  the  prior  acts  a peculiar  interest.  In 
Martorelli’s  case,90  he  said,  in  construing  the  Act  of  1891 
and  those  preceding  it:  “These  acts  refer  to  aliens  who 
are  imported  into  or  who  immigrate  to  this  country,  not  to 
persons  already  here,  who  temporarily  depart  and  re- 
turn ;”  and  In  re  Maiola  :91  “The  entire  body  of  statute  law 

85/fi  re  Panzara  et  al.,  51  Fed.  275;  In  re  Martorelli,  63  Fed.  437;  and 
Bee  United  States  v.  Goldenberg,  168  U.  S.  95,  42  Law  Ed.  394,  22  Op. 
Atty.  Gen.  353,  Feb.,  1899,  23  Op.  Atty.  Gen.  278,  Oct.  1900. 

86United  States  v.  Burke,  99  Fed.  895. 

87Moffitt  v.  United  States,  128  Fed.  375;  and  see  23  Op.  Atty.  Gen.  278, 
October,  1900. 

88160  Feb.  843. 

8»Taylor  v.  United  States,  152  Fed.  1;  Ex  parte  Hoffman,  179  Fed.  839. 

8063  Fed.  427. 

8167  Fed.  114. 


430  The  Exclusion  and  Expulsion  of  Aliens. 

touching  the  exclusion  of  contract  laborers  conclusively 
shows  that  it  is  directed  exclusively  against  alien  immi- 
grants, not  against  alien  residents  when  returning  after  a 
temporary  absence.”  92 

The  position  in  international  law  of  the  alien  domiciled 
in  this  country  had  already  been  defined  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  Lau  Ow  Bew  v. 
United  States.93  This  was  the  case  of  a Chinese  merchant 
domiciled  in  this  country  who,  after  a departure,  animo 
revertendi , failed  on  his  return  to  produce  the  certificate 
of  identity  required  under  the  Chinese  exclusion  Act  of 
1882  of  Chinese  merchants  about  to  come  to  the  United 
States.  The  facts  of  his  identity  and  commercial  domicile 
were  admitted,  but  he  wTas  denied  admission  solely  because 
he  was  without  a certificate.  The  court  said:  “But 
Chinese  merchants  domiciled  in  the  United  States  and  in 
China  only  for  temporary  purposes,  animo  revertendi,  do 
not  appear  to  us  to  occupy  the  predicament  of  persons 
‘who  shall  be  about  to  come  to  the  United  States’  when 
they  start  on  their  return  to  the  country  of  their  residence 
and  business.  The  general  terms  used  should  be  limited 
to  those  persons  to  whom  Congress  manifestly  intended  to 
apply  them By  general  international  law,  foreign- 

ers who  have  become  domiciled  in  a country  other  than 
their  own,  acquire  rights  and  must  discharge  duties  in 
many  respects  the  same  as  possessed  by  and  imposed  upon 
the  citizens  of  that  country,  and  no  restriction  upon  the 
footing  upon  which  such  persons  stand  by  reason  of  their 
domicile  of  choice,  or  commercial  domicile  is  to  be  pre- 
sumed  ” 

This  is  a recognition  of  the  well-known  principle  of  in- 
ternational law,  that,  once  a sovereign  state  has  made  ap- 
parent its  willingness  to  receive  foreigners  into  its  do- 
minion, and  they  avail  themselves  of  the  opportunity  thus 
offered,  they  have  the  same  right  to  the  protection  of  the 

82And  see  In  re  Ota,  96  Fed.  487 ; In  re  Panzara,  51  Fed.  275. 

93144  U.  S.  47,  36  Law  Ed.  340. 


Status. 


431 


municipal  law  of  the  country  as  the  residents  themselves ; 
in  other  words,  that,  just  as  the  citizen  may  avail  himself 
of  every  right  conferred  by  the  law  of  the  state  upon  citi- 
zens thereof,  so  may  the  alien  claim  every  advantage  which 
the  municipal  law  confers  upon  aliens.  And,  while  it  is 
within  the  power  of  every  sovereign  state  to  designate 
under  what  conditions  aliens  may  take  up  their  abode 
within  its  territorial  limits,  the  conditions  or  restrictions, 
if  imposed,  must  be  openly  expressed  and  declared,  in 
order  that  the  foreigner  may  not  be  put  in  the  position  of 
having  been  deceived  with  regard  to  the  rights  which  he 
had  hoped  to  exercise  on  being  admitted.  It  is  plain  that 
ii;  would  be  opposed  to  this  rule  of  the  law  of  nations  just 
referred  to,  as  well  as  the  principles  of  enlightened  govern- 
ment, to  read  into  a law  dealing  with  the  rights  and  obli- 
gations of  aliens,  conditions  or  restrictions  not  expressly 
declared  or  not  existing  by  necessary  implication. 

Once,  however,  that  the  law-making  power  of  the  coun- 
try of  domicile  finds  it  necessary  to  impose  additional  con- 
ditions relative  to  the  rights  of  aliens  coming  to,  or  even 
resident  in,  the  county,  and  sees  fit  to  express  restrictions 
in  the  form  of  municipal  laws  or  regulations  governing 
the  subject,  such  conditions  are  of  binding  effect  on  all 
aliens  upon  whom  they  are  intended  to  operate,  and  the 
fact  that  a foreigner  has  established  and  maintained  for 
years  a domicile  in  the  country  is  no  ground  on  which  his 
exemption  from  the  effects  of  this  principle  of  law  can  be 
based. 

This  is  made  clear  by  the  decision  of  the  Supreme  Court 
in  the  case  of  Lem  Moon  Sing  v.  United  States.94  In  1895 
a Chinese  person  alleging  himself  to  be  a merchant  domi- 
ciled in  the  United  States,  presented  himself  at  the  port 
of  San  Francisco  for  admission.  The  collector  of  the  port 
refused  to  admit  him  and  held  him  for  deportation,  where- 
upon he  applied  for  a writ  of  habeas  corpus  on  the  ground 
9*158  U.  S.  538,  39  Law  Ed.  1082. 


432  The  Exclusion  and  Expulsion  of  Aliens. 

that  he  was  domiciled  and  engaged  in  business  in  the 
United  States.  The  Act  of  1894  had  provided  that  the  de- 
cision of  executive  officers  should  in  all  cases  be  final  as 
to  the  right  of  aliens  seeking  admission  into  this  country 
under  any  law  or  treaty.  It  was  insisted  by  counsel  that 
the  right  of  domicile  acquired  by  aliens  lawfully  in  this 
country  could  not  legally  be  taken  away,  nor  could  its  ex- 
ercise be  obstructed  by  any  action  of  executive  officers  of 
the  Government  under  whatever  authority  they  proceeded. 
In  affirming  the  judgment  of  the  district  court  which  de- 
nied the  writ,  the  court  speaking  through  Mr.  Justice 
Harlan,  said : “The  power  of  Congress  to  exclude  aliens 
altogether  from  the  United  States  or  to  prescribe  the 
terms  and  conditions  upon  which  they  may  come  to  this 
country, is  settled Is  a statute  passed  in  exe- 

cution of  that  power  any  less  applicable  to  an  alien  who 
has  acquired  a commercial  domicile  within  the  United 
States,  but  who,  having  voluntarily  left  the  country,  al- 
though for  a temporary  purpose,  claims  the  right  under 
some  law  or  treaty  to  re-enter  it?  We  think  not.  The 
words  of  the  statute  are  broad  and  include  ‘every  case’ 
of  an  alien , at  least  every  Chinese  alien,  who  at  the  time 
of  its  passage  is  out  of  the  country,  no  matter  for  what 
purpose,  and  seeks  to  come  back.  He  is  none  the  less  an 
alien  because  of  his  having  a commercial  domicile  in  this 
country He  cannot  by  reason  merely  of  his  domi- 

cile in  the  United  States  for  purposes  of  business  demand 
that  his  claim  to  re-enter  by  virtue  of  some  statute  or 

treaty,  shall  be  determined by  the  courts  of  the 

United  States He  left  the  country  subject  to  the 

exercise  by  Congress  of  every  power  it  possessed  under  the 
Constitution.” 

The  distinction  between  the  Lem  Moon  Sing  and  Lau  Ow 
Bew  case  is  pointed  out  by  the  court  in  the  following  lan- 
guage : “The  difference  between  that  case  and  the  present 
one  is  that,  by  the  statutes  in  force  when  the  former  was 
decided,  the  action  of  executive  officers  charged  with  the 


Status. 


433 


duty  of  enforcing  the  Chinese  Exclusion  Act  of  1882,  as 
amended  in  1884,  could  be  reached  and  controlled  by  the 
courts  when  necessary  for  the  protection  of  rights  given  or 
secured  by  some  statute  or  treaty  relating  to  Chinese. 
But,  by  the  Act  of  1894,  the  decision  of  the  appropriate 
immigration  or  customs  officers  excluding  an  alien  ‘from 
admission  into  the  United  States  under  any  law  or  treaty’ 
is  made  final  in  every  case,  unless  on  appeal  to  the  Secre- 
tary of  the  Treasury,  it  be  reversed.” 

There  is  nothing  in  the  language  of  the  decision  to  indi- 
cate that,  had  Congress  left  the  courts  the  power  to  pass 
on  the  point  as  to  whether  or  not  a Chinese  alien  domiciled 
here  was  seeking  to  exercise  a right  to  enter  this  country 
guaranteed  by  the  treaty  with  China  of  1880,  the  same  re- 
sult would  not  have  been  reached  as  in  the  decision  in  the 
Lau  Ow  Bew  case;  and  nothing  to  show  that,  in  the  ab- 
sence of  municipal  legislation  to  the  contrary,  an  alien 
who  legally  acquires  a domicile  in  this  country  has  under 
international  law  the  right  to  maintain  it,  whether  such 
maintenance  consist  in  the  uninterrupted  exercise  of  domi- 
ciliary rights,  or  the  resumption  of  the  exercise  thereof 
after  a temporary  absence  animo  revertendi.  It  goes  no 
further  than  to  lay  down  the  principle  that,  once  the  muni- 
cipal law  has  provided  that  the  right  of  all  aliens  seeking 
to  enter  the  country  under  any  law  or  treaty — including 
by  necessary  implication  those  already  domiciled  here — 
shall  be  determined  by  the  proper  administrative  officers, 
the  courts  are  powerless  to  interfere  on  behalf  of  persons 
excluded  thereunder  on  the  ground  that  they  have  ac- 
quired a domicile  in  this  country. 

In  endeavoring  to  determine  the  rights  of  resident  aliens 
with  reference  to  the  Act  of  1907,  the  question  is  not 
whether  Congress  has  the  power  to  impose  conditions  under 
which  they  may  retain  a domicile  already  established, 
but  whether  Congress  has  in  fact  exercised  this  power. 
The  decision  in  the  Lau  Ow  Bew  case  makes  it  clear  that 
any  restriction  of  the  right  of  the  alien  dwelling  in  the 


434  The  Exclusion  and  Expulsion  of  Aliens. 

United  States  to  retain  liis  domicile — and  to  retain  means, 
necessarily,  the  right  to  resume  it  after  a temporary  ab- 
sence undertaken  with  the  intent  to  return — is  not  to  be 
presumed.  Unless,  therefore,  the  present  act  contains 
provisions  from  which,  expressly  or  by  necessary  implica- 
tion, it  appears  that  as  it  was  the  intention  of  Congress  to 
restrict  or  deprive  the  resident  alien  of  domiciliary  rights 
once  acquired,  it  is  hard  to  see  how  the  general  provisions 
relative  to  the  admission,  exclusion,  or  deportation  of 
aliens  can  be  deemed  to  apply  to  the  members  of  that  class. 

If  the  act  does  not  include  them  in  its  operation,  then 
such  persons  on  return  from  a temporary  absence  are  not 
seeking  admission  to  this  country  under  any  law  of  the 
United  States,  and  if  excluded  by  the  immigration  officers 
under  color  of  the  act,  the  administrative  decision  is 
not  final,  and  the  courts  have  full  power  to  pass  on  such 
cases  unfettered  by  the  restrictive  provisions  of  the  Act 
of  August  18,  1894,  which  is  now  embodied  in  the  existing 
law. 

As  before  stated,  none  of  the  acts  preceding  that  of 
March  3,  1903,  had  been  held  to  include  domiciled  aliens 
within  their  provisions,  although,  as  appears  by  the  cita- 
tions already  given,95  the  precise  point  had  on  various  oc- 
casions been  submitted  to  the  determination  of  the  courts ; 
and  attention  has  been  called  to  the  fact  that  this  prin- 
ciple had  been  maintained  in  no  uncertain  terms  by  the 
very  circuit  judge  who  rendered  the  decision  in  the  Taylor 
case.  The  reason  for  the  change  was  not  because  the  court 
failed  to  adhere  to  its  view,  expressed  in  preceding  de- 
cisions, that  aliens  domiciled  in  this  country  and  return- 
ing thereto  are  not  immigrants,  but  because  the  Act  of 
1903  in  re-enacting  certain  provisions  of  the  preceding  act 
substitutes  the  term  “aliens”  for  “alien  immigrants,” 
which  hitherto  had  appeared  in  the  corresponding  sec- 
tions. It  may  be  stated,  in  this  connection,  that  the  word 
“immigrants”  is  omitted  in  the  present  act  in  the  sections 
95 Ante,  pp.  429,  430. 


Status. 


435 


corresponding  to  those  of  the  Act  of  1903 — the  same  omis- 
sion which  led  to  the  Taylor  doctrine;  but  it  is  to  be 
observed  that  these  sections  deal  with  the  obligation  of 
ship-owners  and  transportation  companies  “bringing”  or 
“landing”  aliens  in  the  United  States,  and  have  nothing 
to  do  with  the  designation  of  what  classes  of  aliens  are  to 
be  excluded,  or  with  the  instrumentalities  by  which  such 
exclusion  is  to  be  effected. 

It  is  also  to  be  observed  that,  in  section  2 of  this  act,  of 
the  act  of  1903,  and  of  its  predecessor  of  1891,  which,  in  all 
these  acts,  enumerates  the  various  classes  of  aliens  subject 
to  exclusion  thereunder,  the  word  “aliens” — not  “alien  im- 
migrants”— has  invariably  been  used.  Had  the  Act  of 
1891  referred  to  those  excludable  under  its  provisions  as 
“alien  immigrants,”  or  “immigrants,”  in  the  section  de- 
voted exclusively  to  their  classification,  and  had  this  des- 
ignation been  changed  to  “alien”  in  the  corresponding 
section  of  the  act  of  1903,  the  significance  of  the  change 
might  well  have  been  apparent.  But  the  Act  of  1891,  as 
before  stated,  designates  the  classes  of  “aliens”  exclud- 
able; and  still  was  held  to  exclude  only  certain  classes  of 
alien  immigrants  and  to  have  no  application  to  aliens  not 
coming  here  in  that  capacity. 

In  the  Taylor  case96  the  same  court  said,  in  construing 
the  act  of  March  3,  1903 : “The  word  ‘alien’  is  a broad  one 
with  a definition  wholly  unambiguous  and  clearly  under- 
stood by  all,  lawyers  and  laymen  alike,  * * * ‘alien 

immigrant’  is  a less  comprehensive  term  than  ‘alien’,  and 
when  it  is  deliberately  discarded  for  the  broader  term  the 
change  is  highly  significant.”  Of  what  small  significance 
the  Supreme  Court  thought  this  change,  appears  in  the 
opinion  which  reversed  the  Taylor  case  on  appeal97  where 
the  court  remarked:  “We  can  see  no  reason  to  suppose 
that  the  omission  meant  to  do  more  than  to  avoid  the  sug- 
gestion that  no  one  was  within  the  act  who  did  not  come 

wAnte,  p.  427. 

97 Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  ISO. 


436  The  Exclusion  and  Expulsion  of  Aliens. 

here  with  the  intent  to  remain,”  and  held  that  the  term 
“alien”  as  used  in  the  section  of  the  act,  subject  to  its 
consideration  on  the  issues  before  it,  did  not  include  alien 
seamen  on  ordinary  shore  leave.  But  to  say  that  the  act 
affected  aliens  other  than  immigrants  is  far  from  saying 
that  is  affected  all  aliens,  including  resident  aliens  return- 
ing from  a temporary  absence  abroad.  The  Supreme 
Court’s  decision  seems  to  be  limited  to  holding,  first,  that 
the  word  “aliens,”  as  used  in  the  Act  of  1903,  did  not  in- 
clude all  aliens;  and,  second,  that  the  omission  of  the 
word  “immigrants”  might  have  this  significance  and  no 
more : that  it  extended  the  operation  of  the  act  to  aliens 
ether  than  those  who  might  come  to  the  United  States  for 
the  purpose  of  making  it  their  home. 

In  the  present  act  section  24  is  repeated  and  section  25 
followed  the  general  doctrine  as  to  the  alleged  significance 
of  the  change  of  “alien  immigrants”  to  “aliens”  in  the 
Act  of  1903  have,  in  assuming  that  the  same  significance  is 
to  be  attached  to  the  repetition  of  the  term  “aliens”  in  the 
corresponding  sections  of  the  present  act,  overlooked  a 
change  of  wording  in  the  Act  of  1907,  which,  according  to 
the  general  line  of  statutory  interpretation  which  they 
adopted,  must  be  of  at  least  equal  significance. 

Section  24  of  the  Act  of  1903  provides  for  the  appoint- 
ment of  immigration  officers  with  power  to  admit  aliens; 
but  that  every  alien  who  may  not  appeal1  to  the  examining 
inspector  to  be  clearly  and  without  doubt  entitled  to  land 
shall  be  detained  for  examination  in  relation  thereto  by  a 
board  of  special  inquiry.  Section  25  provides  “that  such 
boards  of  special  inquiry  shall  be  appointed  by  the  com- 
missioners of  immigration  at  the  various  ports  of  arrival 
as  may  be  necessary  for  the  prompt  determination  of  all 
cases  of  aliens  detained  at  such  ports  under  the  provisions 
of  law.” 

It  is  to  be  noted  moreover  that  those  courts  which  have 
likewise,  except  that  in  the  latter  the  term  “aliens”  is  set 
aside,  and  the  term  “immigrants”  is  substituted  therefor. 


Status. 


43T 


That  this  change  was  deliberate  and  not  the  result  of 
inadvertence  is  shown  by  the  history  of  the  bill  from  its 
presentation  to  its  passage.  As  introduced  by  Senator 
Dillingham  in  the  Senate  on  February  14,  1906,  section  25 
contains  the  word  “immigrants.”  On  that  date  it  was 
read  and  referred  to  the  Committee  on  Immigration.  On 
March  29  it  was  reported  with  amendments  with  the  word 
“immigrants”  stricken  out  and  “aliens”  substituted.  In 
this  shape  it  passed  the  Senate  on  May  23,  1906.  On  May 
24  it  was  referred  in  the  House  to  the  Committee  on  Im- 
migration and  Naturalization,  and  on  the  29th  reported 
with  an  amendment  and  committed  to  the  Committee  of 
the  Whole  House  on  the  State  of  the  Union  and  ordered 
printed  with  the  word  “aliens”  stricken  out  and  the  word 
“immigrants”  again  in  its  place.  On  June  30,  it  was  again 
ordered  printed  as  amended  by  the  House  and  submitted 
to  conference.  On  its  return  from  conference  the  word 
“immigrants”  was  retained. 

It  is  significant  that,  during  the  period  of  time  extend- 
ing from  the  date  of  the  presentation  of  the  bill  until  its 
passage,  the  following  cases,  touching  directly  on  the 
point  as  to  whether  or  not  the  Act  of  1903  operated  on  all 
aliens,  were  decided  in  the  Federal  courts : The  Aultman 
case,98  where  the  act  was  held  not  to  apply  to  a resident 
alien  on  his  return  from  a temporary  absence  in  Canada; 
the  Buchsbaum  case99  to  the  same  effect;  the  Rodgers 
case,100  sustaining  the  Buchsbaum  decision  on  appeal ; and 
the  Taylor  case,1  which  held  flatly  that  the  act  applied  to 
all  aliens. 

Thus  the  question  of  whether  or  not  the  act  of  1903  ap- 
plied to  resident  aliens  came  squarely  up  for  judicial  de- 
termination at  a date  preceding  that  on  which  the  bill  was 
ssUnited  States  v.  Aultman,  143  Fed.  922. 

"In  re  Buchsbaum,  141  Fed.  221;  see  Rodgers  v.  United  States,  152  Fed. 
346,  affirming  this  decision. 

looRodgers  v.  United  States,  152  Fed.  346. 

iTaylor  v.  United  States,  152  Fed.  1;  reversed  in  207  U.  S.  120,  52  Law 
Ed.  130. 


438  The  Exclusion  and  Expulsion  of  Aliens. 

presented,  and  Congress  must  therefore  have  been  cogni- 
zant of  such  fact;  and  it  does  not  seem  unreasonable  to 
conclude  that  the  change  in  the  present  act  was  the  result 
of  the  intention  to  remove  any  doubt  which  had  arisen  by 
reason  of  the  omission  of  the  term  “immigrants”  from  the 
act  then  in  force,  particularly  in  view  of  the  long  estab- 
lished and  hitherto  uniformly  accepted  doctrine  that  the 
immigration  acts  did  not  apply  to  foreigners  who  had  ac- 
quired a domicile  in  this  country.  The  least  that  can  be 
said,  however,  with  regard  to  the  significance  of  this 
change  is  that  whatever  ground  may  have  been  deemed 
sufficient  to  justify  the  view  that  the  Act  of  1903  applied 
to  all  aliens,  based  as  it  was  on  the  sole  circumstance  of 
the  absence  of  the  term  “immigrants”  in  that  act,  must 
necessarily  have  no  further  bearing  in  the  face  of  the  de- 
liberate substitution  of  terms  in  the  present  act,  and  par- 
ticularly where  that  substitution  occurs  in  the  section 
defining  the  jurisdiction  of  the  only  instrumentality 
vested  with  power  to  exclude  in  the  first  instance. 

It  seems,  then,  that,  shorn  of  whatever  significance  may 
have  been  supposed  to  result  from  the  absence  of  the  term 
“immigrants,”  the  present  act  must  be  classified  with  those 
antedating  1903,  uniformly  held  by  the  courts  not  to 
apply  to  domiciled  aliens,  unless  it  contains  additional 
provisions  which  indicate  clearly  that  prior  domicile  shall 
not  be  a bar  to  its  operation. 

Section  21  provided  that  aliens  found  within  three  years 
after  entry  to  be  unlawfully  in  the  United  States  are  sub- 
ject to  deportation  under  the  act.  Unlawful  presence  in 
such  cases  must  be  the  result  either  of  unlawful  entry  in 
the  first  place,  or  of  acts  done  by  the  alien  subsequent  to 
lawful  entry,  which  make  the  presence  of  the  alien  in  the 
country  unlawful.  The  only  condition  imposed  by  the  act 
on  the  right  to  acquire  a lawful  residence  is  the  fact  of 
lawful  entry;  and  if  the  rights  acquired  by  such  domicile 
are  subject  to  restriction  or  abrogation  in  specified  cases, 


Status. 


439 


this  must  appear  plainly  from  the  provisions  of  the  act 
itself. 

Since  section  2 provided  that  disqualified  aliens  can 
never  enter  lawfully,  it  follows  that  they  can  not  acquire 
a lawful  domicile  on  which  the  claim  to  retain  the  right 
to  re-enter  can  be  predicated  during  the  three  year  period 
during  which  they  are  subject  to  deportation.  The 
present  act  places  a restriction  on  the  rights  ensuing  from 
domicile  even  after  lawful  entry  with  regard  to  certain 
designated  classes  of  aliens — prostitutes  and  persons  con- 
nected with  houses  of  prostitution — for,  under  section  3,  as 
amended  by  the  Act  of  March  26,  1910,  persons  who  be- 
come members  of  the  objectionable  classes  specified 
therein  can,  at  any  time  after  entry,  be  deported.  This 
amounts  to  a specific  declaration  on  the  part  of  Congress 
that,  notwithstanding  that  they  have  obtained  a lawful 
residence  in  this  country,  such  aliens  are  subject  to  ex- 
pulsion, and  the  plea  of  domicile  cannot  avail  them — that, 
even  after  lawful  entry,  aliens  who  fall  beneath  the  ban  of 
section  3 forfeit  their  right  to  retain  their  domicile  in  the 
United  States. 

fn  these  instances  only  does  the  statute  provide,  that 
rights  inherent  in  domicile  lawfully  acquired  are,  under 
its  provisions,  subject  to  abrogation;  and  to  this  extent 
only  does  the  municipal  law  curtail  domiciliary  rights 
which,  in  the  absence  of  municipal  enactment,  interna- 
tional law  presumes.  The  provisions  contained  in  section 
20  of  the  Act  of  1907,  authorizing  the  deportation  within 
three  years  after  landing  of  any  alien  who  within  that  time 
shall  be  found  to  have  became  a public  charge  through 
causes  existing  at  the  time  of  his  entry,  would  seem  to  be 
based  on  the  theory  that,  being  at  the  time  of  admission 
likely  to  become  a public  charge,  he  was  at  that  time  sub- 
ject to  exclusion,  and  his  entry,  although  permitted  by  the 
immigration  officers,  was  in  reality  not  in  accordance 
with  law. 

In  reaching  the  conclusion  that  aliens  who  have  ac- 


440  The  Exclusion  and  Expulsion  of  Aliens. 

quired  a domicile  in  this  country,  and  return  for  the  pur- 
pose of  continuing  to  maintain  it,  are  not  subject  to  the 
excluding  provisions  of  the  immigration  law,  the  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  expressed  itself 
as  follows : “Aliens  have  always  been  allowed  to  reside  in 
the  United  States  and  acquire  property  there  * * and 

their  right  to  return  to  the  United  States,  after  having 
temporarily  left  the  same  with  intention  to  return,  has 
always  been  recognized.  It  is  not  to  be  presumed  that 
Congress  intended  to  change  the  whole  trend  of  its  prior 
legislation  in  regard  to  alien  residents.” 

Granted  that  the  rule  that  retention  of  a domicile  al- 
ready acquired,  in  the  absence  of  specific  legislation  to  the 
contrary,  has  been,  as  the  court  states,  always  observed 
in  this  country,  this  principle  of  international  law,  like 
the  provisions  of  municipal  law,  must  be  subjected  to  a 
reasonable  interpretation,  and  should  not  be  invoked  or 
enforced  under  conditions  where  its  application  would  be 
obviously  inappropriate. 

Since  it  is  entirely  within  the  power  of  a sovereign  state 
to  refuse  to  allow  aliens  to  acquire  a domicile  within  its 
territorial  limits,  or  if  they  have  acquired  it,  to  pass  laws 
the  result  of  which  may  be  to  deprive  them  thereof,  or  to 
allow  the  privilege  of  domicile  to  aliens  of  a certain  class 
and  to  deny  it  to  others,  it  seems  plain  that  whatever 
domiciliary  rights  the  alien  may  assert  can  be  claimed 
only  on  the  basis  of  the  willingness  of  the  state  to  con- 
sent to  their  enjoyment. 

If  there  is  no  municipal  provision  regulating  or  restrict- 
ing the  method  in  which  these  rights  can  be  acquired  or 
exercised  by  foreigners,  international  law  assumes  that, 
by  being  permitted  to  take  up  his  residence  in  the  country, 
the  alien  stands  on  a par  with  the  citizens  of  the  state  in 
the  full  enjoyment  of  his  domiciliary  rights.  The  right  to 
maintain  a domicile  necessarily  includes  the  right  to  re- 
tain it;  and  the  right  to  retain  it  includes  that  of  the 
physical  resumption  of  the  rights  incident  thereto,  pro- 


Status. 


441 


vided  that  the  voluntary  interruption  of  the  actual  enjoy- 
ment of  those  rights  does  not  involve  the  renunciation 
thereof.  Since  the  acquisition  of  domicile  depends  wholly 
on  the  consent  of  the  sovereign,  the  exercise  of  every  right 
flowing  from  or  incident  thereto  is  traced  to  the  same 
source. 

It  follows  that  the  right  to  resume  the  exercise  of  the 
rights  incident  to  a domicile  which  has  not  been  renounced 
within  the  territorial  limits  of  the  state  in  which  it  was 
acquired  must  depend  on  the  continuing  assent  of  the 
sovereign  to  the  further  enjoyment  thereof.  But  it  some- 
times occurs  that  aliens  excludable  under  the  immigration 
laws  succeed  in  evading  the  immigration  officers  and  in 
establishing  a residence  in  the  United  States  for  a period 
longer  than  that  within  which  they  are  subject  to  deporta- 
tion if  the  unlawful  presence  is  discovered;  or  that  for- 
eigners who,  when  permitted  to  enter,  were  competent  to 
acquire  a domicile  under  the  immigration  laws,  and  yet 
who,  on  their  return  from  a temporary  absence,  are  af- 
fected with  disabilities  which,  had  they  existed  at  the  time 
they  first  presented  themselves  for  admission,  would,  if 
detected,  have  prevented  them  from  acquiring  a residence 
here.  They  can  enter  only  on  consent  of  the  United  States, 
expressed  or  implied;  and  in  order  to  determine  whether 
such  consent  exists  reference  must  be  had  to  the  appro- 
priate provisions  of  the  immigration  act  in  their  applica- 
tion to  the  facts  presented  by  a given  case,  or  class  of 
cases. 

For  the  purposes  of  this  discussion  aliens  who  enter  the 
United  States  may  be  classified  as  follows : 

(a)  Those  who  enter  the  country  and  (1)  do  not  ac- 
quire a domicile  here,  or  (2)  acquire  a domicile  but  re- 
nounce it. 

(b)  Those  who  acquire  a domicile  after  (1)  lawful 
entry,  or  (2)  unlawful  entry 


442  The  Exclusion  and  Expulsion  of  Aliens. 

B.  Aliens  who  after  entering  the  United  States 
( 1. ) Fail  to  acquire  a domicile. 

An  alien  who  has  been  permitted  to  enter  the  country 
and  fails  to  establish  his  domicile  here — in  other  words, 
does  not  take  advantage  of  the  opportunity  of  acquiring 
domiciliary  rights  afforded  him  by  permitting  him  to 
land — and,  after  leaving  the  country,  seeks  to  re-enter,  can- 
not successfully  urge  that  the  mere  fact  of  prior  entry  has 
vested  him  with  the  right  to  return.  The  right  to  return 
to  an  existing  domicile  is  one  of  the  incidents  necessary  to 
its  maintenance;  and  it  would  be  idle  to  contend  that 
when  a State  has  consented  to  the  establishment  of  a 
domicile  within  its  borders  by  an  alien,  such  grant  does 
not  include  the  exercise  of  all  acts  incidental  to  its  mainte- 
nance. But,  on  the  other  hand,  if  domicile  does  not  exist, 
no  justification  can  arise  for  the  exercise  of  a right  which 
can  only  exist  as  incidental  to  an  existing  domicile.  In 
the  case  of  United  States  v.  Rodgers  and  Four  Similar 
cases2  decided  by  the  Circuit  Court  of  Appeals  for  the 
Third  Circuit,  the  court  said:  “The  alien  after  his  first 
entry  into  this  country  stayed  two  years  and  then  returned 
to  his  old  home,  where  he  stayed  one  year.  He  then  re- 
turned to  the  United  States  at  the  suggestion  of  his  cousin 
who  lived  in  Philadelphia  and  who  sent  him  the  money  for 
his  passage,  promising  to  procure  work  for  him.  There  is 
no  evidence  that  a permanent  domicile  was  acquired  by 
this  alien  on  his  first  entry  into  the  United  States ; no  evi- 
dence that  either  wife  or  family,  though  he  testified  that 
he  had  both,  came  with  him  at  that  time ; his  return  to  his 
native  country  was  not  for  a specific  purpose,  nor  his  ab- 
sence a temporary  one.  So  also  in  the  case  of  Maretta, 
who,  on  his  first  coming  to  the  United  States,  resided  for 
one  year  at  Tomkinsville,  New  York,  and  then  returned  to 
Italy  where  he  remained  for  three  years.  He  testifies  that 

2United  States  ex  rel.  Barlin  v.  Rodgers,  191  Fed.  790. 


Status. 


443 


he  came  to  this  country  because  he  was  out  of  work,  and 
that  he  left  his  wife  and  three  children  in  Italy.  It  will 
thus  be  seen  that  all  the  facts  in  both  of  these  cases  abso- 
lutely negative  the  acquirement  of  any  domicile  by  the 
appellants  in  this  country  before  their  return  to  Italy. 
And  they  not  only  negative  any  temporary  purpose  in  re- 
turning, but  strongly  point  to  the  intention  of  perma- 
nently remaining  in  their  old  homes.  We  have  no  diffi- 
culty in  holding  that  both  of  these  last-mentioned  appel- 
lants were  alien  immigrants  upon  their  last  arrival  in  this 
country  and  as  such  subject  to  the  provision  of  the  immi- 
gration laws  of  the  United  States.”  In  the  concluding 
sentences  of  its  decision  the  court  affirms  the  principle  as- 
serted by  it  in  an  earlier  decision3  that,  where  the  facts 
show  that  an  alien  has  actually  acquired  a domicile  her? 
and  leaves  it  temporarily,  animo  revertendi,  to  return  to 
his  native  county  for  a specific  purpose,  he  is  not  on  his 
return  an  alien  immigrant  and  consequently  not  subject 
to  the  operation  of  the  immigration  law. 

(2.)  Kenounce  a domicile  once  acquired. 

The  court’s  refusal  to  grant  the  writ  of  habeas  corpus 
was  because  it  found  that  the  petitioner  had  never  ac- 
quired a domicile  in  this  country ; but  the  result  would  un- 
questionably have  been  the  same  had  it  found  that  a domi- 
cile had  actually  been  acquired  but  was  subsequently 
abandoned. 

What  effect  the  acquisition  of  domicile  has  upon  the 
claim  to  re-enter  without  being  subjected  to  the  operation 
of  the  immigration  laws  may,  it  is  thought,  be  examined  to 
advantage  by  adopting  the  following  classification : 

C.  Aliens  who  acquire  a domicile. 

(1.)  Where  the  Original  Entry  is  Lawful. 

1.  Where  the  alien  while  physically  here  or  abroad 
commits  no  act,  and  becomes  a member  of  no  class,  the 

sRodgers  v.  United  States,  152  Fed.  346. 


444  The  Exclusion  and  Expulsion  of  Aliens. 

commission  of  which  or  membership  in  which,  if  detected, 
would  render  him  subject  to  expulsion. 

2.  While  physically  here  or  abroad  commits  some  act 
which  renders  him  subject  to  expulsion  or  becomes  a mem- 
ber of  a class  all  members  of  which  are  subject  to  expul- 
sion from  the  country — such  as  prostitution,  receiving 
benefit  from  the  earnings  of  prostitutes,  or  who  protect  or 
promise  to  protect  prostitutes,  or  is  employed  by  or  in 
connection  with  any  house  of  prostitution. 

3.  Becomes  while  abroad  one  of  a class  or  profession, 
membership  in  which  is  determined  by  the  acceptance  of  a 
code  of  morals  or  a political  creed  which  would  at  the  time 
of  entry  have  made  him  excludable  under  the  immigration 
law,  but  which  would  not,  if  acquired  after  entry,  subject 
the  alien  to  expulsion  under  the  immigration  law — 
such  as  polygamists  or  persons  who  admit  their  belief  in 
the  practice  of  polygamy,  or  anarchists  or  persons  who 
believe  in  or  advocate  the  overthrow  by  force  or  violence 
of  the  government  of  the  United  States  or  all  governments 
or  the  assassination  of  public  officials. 

4.  Who  when  abroad  commits  an  act  which,  if  com- 
mitted here,  would  not  render  him  liable  to  expulsion,  but 
which,  if  it  had  been  committed  prior  to  his  admission 
would  have  been  a bar  to  his  admission, — such  as  the  com- 
mission of  a felony  or  other  crime  or  misdemeanor  in- 
volving moral  turpitude. 

5.  Where  the  conditions  under  which  the  ajlien  en- 
tered under  an  earlier  act,  and  which  involved  no  question 
of  physical,  mental,  or  moral  disability,  did  not  render 
him  excludable  under  that  act,  but  would  have  operated 
to  exclude  him  under  the  new  act  in  force  on  his  return 
had  he  then  sought  to  enter  for  the  first  time — for  example, 
when  the  alien  entered  under  a contract  to  labor  in  this 
country  when  an  act  which  did  not  exclude  contract  labor 
was  in  force. 


Status. 


445 


(2.)  Where  the  Original  Entry  is  Unlawful. 

1.  When  the  alien  seeks  to  re-enter  within  the  period 
in  which,  had  his  unlawful  presence  been  discovered,  he 
would  have  been  subject  to  deportation. 

2.  When  he  leaves  before  the  period  has  run  and  re- 
turns after  its  expiration. 

3.  When  he  leaves  after  its  expiration. 

(1.)  Where  Original  Entry  is  Lawful. 

1.  When  an  alien  seeking  admission  to  this  country 
and  after  being  duly  examined  by  the  inspecting  officers, 
is  found  to  be  suffering  with  no  disability,  physical, 
mental  or  moral,  which  would  operate  to  exclude  him, 
his  right  to  acquire  and  maintain  a domicile  here  under 
the  conditions  prescribed  by  law  is  definitely  established. 
It  is  true  that  nowhere  does  the  act  in  so  many  words  pro- 
vide that  he  may  acquire  a domicile  and  continue  to  main- 
tain it.  But,  as  has  been  seen,  the  omission  cannot  be 
taken  to  militate  against  the  right.  There  would  be  no 
reason  for  such  a provision  in  an  act  dealing  primarily 
with  the  subject  of  foreigners  coming  to  the  United  States 
for  the  precise  purpose  of  establishing  their  domicile  here ; 
and  equally  little  ground  for  averring  the  existence  of  a 
right  which  international  law  assumes.  The  conditions 
imposed  by  the  immigration  act  are  primarily  conditions 
incident  to  entry;  but  it  also,  and  properly,  defines  cer- 
tain rules  of  conduct  which  are  to  be  observed  by  aliens 
in  order  to  permit  them  to  continue  to  reside  in  this  coun- 
try. It  may  be  safely  assumed  that  the  legislators  of  Con- 
gress, when  preparing  the  act,  were  familiar  with  the 
principle  of  international  law  so  often  referred  to  in  these 
pages,  and  so  constantly  cited  and  upheld  by  the  various 
courts  of  this  country.  They  were  doubtless  aware  of 
those  decisions  which,  rendered  under  the  acts  pre- 
ceding that  of  March  3,  1903,  were  unanimous  in 
holding  that  the  previous  acts  on  immigration  passed  by 
their  predecessors  had  no  application  to  aliens  who  had 


446  The  Exclusion  and  Expulsion  of  Aliens. 


acquired  a domicile  here.  They  unquestionably  knew 
that,  in  the  absence  of  municipal  legislation  to  the  con- 
trary, the  acquisition  of  domicile  in  this  country  by  aliens 
involved  the  right  to  retain  it  whether  manifested  by 
physically  uninterrupted  residence  or  by  the  voluntary 
resumption  of  existing  rights  after  a temporary  departure 
from  this  country.  But  it  was  equally  manifest  to  them 
that  domiciliary  rights  acquired  by  an  alien  were  of  minor 
importance  when  weighed  in  the  balance  against  the  best 
interests  of  the  state.  Hence  the  three  year  provision  in 
section  21  and  the  provisions  of  section  2 as  amended  by 
the  Act  of  March  26,  1910,  sweeping  in  their  effect  as 
against  certain  classes  of  undesirable  aliens  who  might 
lawfully  acquire  a residence  here,  but  whose  continued 
presence  might  prove  a menace  to  the  morals  of  the  com- 
munity if  allowed  to  remain.  The  effect  of  section  21  is  to 
provide  that  a domicile  of  less  than  three  years’  standing 
cannot  avail  the  alien  who  has  entered  this  country  un- 
lawfully; but  section  3 as  amended  looks  to  the  loss  of 
domiciliary  rights  irrespective  of  their  duration  when  the 
foreigner  engages  in  pursuits  prohibited  to  him  in  his  ca- 
pacity as  a foreigner  under  the  immigration  law.  But,  as 
before  stated,  these  appear  to  be  the  only  restrictions  im- 
posed by  the  act  on  the  right  to  maintain  a domicile  law- 
fully acquired.  And  it  cannot  be  doubted  that  the  weight 
of  judicial  authority  is  to  the  effect  that  the  excluding  pro- 
visions of  the  acts  of  1903  and  1907  were  not  intended  to 
cover  the  case  of  an  alien  lawfully  domiciled  here,  and  who 
has  observed  the  conditions  on  which  his  domicile  may  be 
maintained. 

In  1907  the  Circuit  Court  of  Appeals  for  the  Third  Cir- 
cuit in  affirming  the  decision  of  the  District  Judge  in  re 
Buchsbaum4  passed  on  the  following  state  of  facts:  The 
petitioner  in  the  court  below  arrived  in  this  country  in 
1901.  In  March,  1905,  he  declared  his  intention  to  be- 
come a citizen  of  the  United  States,  having  for  the  four 

*Ante  p.  437. 


Status. 


447 


years  last  past  maintained  a residence  in  the  United 
States,  and  in  April,  1905,  left  for  his  native  country, 
Austria,  with  the  intention  of  staying  there  only  so  long  as 
was  necessary  for  the  purpose  of  settling  an  estate  and  of 
then  returning  to  this  country.  He  returned  in  Novem- 
ber 1907,  when  the  immigration  officials  found  that  he  was 
afflicted  with  trachoma  and  ordered  his  deportation.  He 
was  released  on  habeas  corpus  proceedings  and  the  Gov- 
ernment appealed.  The  court  found  that  the  evidence 
showed  beyond  dispute  that  on  his  arrival  with  his  family 
in  1901  he  made  his  home  in  New  York,  where  he  con- 
tinued to  reside  and  to  conduct  his  business  for  years; 
that  since  that  time  he  had  never  changed  or  intended  to 
change  his  domicile.  That  his  absence  was  merely  tem- 
porary and  for  a specific  purpose,  and  that  on  his  return 
he  did  not  at  that  time  seek  to  acquire  a fixed  residence  in 
the  United  States ; that  had  been  theretofore  accom- 
plished. “We  think,”  said  the  court,  “that ....  Congress 
did  not  intend  that  exclusion  under  the  act  on  account  of 
loathsome  or  dangerous  contagious  disease  should  extend 
to  aliens  domiciled  in  this  country.  In  reaching  this  re- 
sult the  body  of  the  act  has  been  considered  in  its  entirety 
in  connection  with  its  title  and  in  the  light  of  other 
statutes  in  pari  materia.  The  title  is : “An  Act  to  regu- 
late the  immigration  of  aliens  into  the  United  States.” 
Certainly  if  taken  alone  it  would  indicate  the  inapplica- 
bility of  the  act  to  the  case  of  Buchsbaum.  It  is  well 
settled  that  where  the  language  of  a statute  is  ambiguous 
or  otherwise  doubtful,  or,  being  plain,  a literal  construc- 
tion would  lend  to  it  such  absurdity,  hardship,  or  injus- 
tice as  to  render  it  irrational  to  impute  to  the  law-making 
power  a purpose  to  produce  or  permit  such  result,  the  title 
may  be  resorted  to  as  tending  to  throw  light  upon  the 
legislative  intent  as  to  its  scope  and  operation.”5 

^Citing  United  States  v.  Fisher,  2 Cranch.  358,  386,  2 Law  Ed.  304; 
Holy  Trinity  Church  v.  United  States,  143  U.  S.  457,  36  Law  Ed.  226; 
Coosaw  Mining  Co.  v.  South  Carolina,  144  U.  S.  550,  563,  36  Law  Ed.  537. 


448  The  Exclusion  and  Expulsion  of  Aliens. 

After  citing  various  sections  of  the  act  obviously  ap- 
plicable to  the  case  of  foreigners  newly  arriving  in  the 
ports  of  this  country,  the  court  proceeds : “To  apply  these 
and  other  provisions  in  the  act,  solely  on  account  of  tem- 
porary absence  from  the  United  States  on  business  or 
pleasure,  to  aliens  domiciled  in  this  country,  many  of 
whom  have  here  had  their  homes  and  families  for  years, 
carried  on  business  and  acquired  wealth  and  distinction, 
and  have  while  here  received  equally  with  citizens  pro- 
tection of  person  and  property  would,  we  think,  not  only 
create  repugnancy  between  the  body  of  the  act  and  its 
title,  but  require  a harshness  of  construction  or  interpre- 
tation never  contemplated  by  Congress.  * * * Had 

Congress  contemplated  such  a radical  departure  from  the 
policy  embodied  in  the  earlier  statutes  touching  importa- 
tion of  aliens  as  to  provide  for  their  exclusion,  although 
not  immigrants,  but  domiciled  in  this  country,  it  is  rea- 
sonable to  assume  that  such  intent,  in  view  of  such  abrupt 
change  of  policy,  would  have  been  plainly  expressed  in  the 
body  of  the  act  and  also  that  a title  other  than  ‘an  Act  to 
regulate  the  immigration  of  aliens  into  the  United  States’ 
would  have  been  adopted.”6  And  the  view  herein  an- 
nounced was  expressed  in  the  recent  decision  of  the  same 
court  in  the  case  of  United  States  v.  Rodgers.7 

In  passing  on  the  right  of  a Japanese  domiciled  in  the 
territory  of  Hawaii,  who  had  left  his  home  to  take  part  in 
the  war  between  Japan  and  Russia  and  who,  on  his  return, 
was  excluded  on  the  ground  that  he  had  trachoma,  the  Cir- 
cuit Court  of  Appeals  for  the  Ninth  Circuit,  in  affirming 
the  judgment  of  the  United  States  District  Court  for 
Hawaii,  which  had  ordered  the  petitioner  to  be  discharged 
on  a writ  of  habeas  corpus , expressed  itself  as  follows : 

“If  this  Act  (of  1903)  were  unaffected  by  the  prior  leg- 
islation” (which  had  been  held  to  apply  uniformly  to 
alien  immigrants  and  not  to  affect  the  rights  of  resident 

eRodgers  v.  United  States,  152  Fed.  346. 

TAnte,  p.  442. 


Status. 


449 


aliens)  “of  which  it  is  amendatory,  there  might  be  ground 
for  saying,  from  its  inclusive  language,  that  it  is  directed 
against  all  aliens  coming  into  the  United  States;  but 
aliens  have  always  been  allowed  to  reside  in  the  United 
States  and  to  acquire  property  there,  while  at  the  same 
time  maintaining  their  citizenship  in  the  country  from 
which  they  came,  and  their  right  to  return  to  the  United 
States  after  having  temporarily  left  the  same  with  inten- 
tion to  return,  has  always  been  recognized.  It  is  not  to 
be  presumed  that  Congress  intended  to  change  the  whole 
trend  of  its  prior  legislation  in  regard  to  alien  residents 
construed  as  that  legislation  had  been  by  the  courts  with- 
out expressing  that  intention  in  terms  so  clear  as  to  leave 
no  room  for  doubt.  We  find  no  such  change  of  phrase- 
ology as  to  justify  that  conclusion.”8 

The  case  of  United  States  v.  Aultman  Co.9  presented  the 
following  facts:  An  alien,  after  having  been  admitted  to 
the  United  States  in  1891,  remained  here  for  twelve  years 
without  setting  foot  out  of  the  country  until,  in  July  1902, 
he  went  to  Canada  to  help  break  a strike  there.  At  the 
end  of  two  weeks  he  was  called  upon  to  assist  in  breaking 
a strike  at  Canton,  Ohio.  The  company  which  undertook 
to  employ  him  was  prosecuted  on  the  ground  that  inducing 
him  to  come  from  Canada  to  Ohio  for  that  purpose  was  a 
violation  of  the  provision  in  the  Act  of  1903  prohibiting 
the  importation  of  aliens  into  the  United  States  to  labor 
under  contract.  The  case  turned  on  the  point  as  to 
whether  he  was  an  alien  immigrant  under  the  Act  of  1903. 
The  court  held  that  “the  unbroken  current  of  authority  is 
that  he  was  not  an  immigrant  within  the  meaning  of  this 
statute.” 

It  would  seem  that  in  such  cases  as  these  the  correct 
conclusion  does  not  depend  on  interpretations  based  either 
on  the  substitution  of  the  word  “aliens”  in  certain  sec- 

sUnited  States  v.  Nakashima,  160  Fed.  842. 

9143  Fed.  922,  district  court,  northern  division  Ohio;  affirmed  per  curiam 
by  Circuit  Court  of  Appeals  for  Sixth  Circuit. 


450  The  Exclusion  and  Expulsion  of  Aliens. 


tions  of  the  acts  of  1903  and  1907  for  “alien  immigrants” 
in  the  Act  of  1891,  or  the  deliberate  change  of  the  term 
“aliens”  as  used  in  section  25  of  the  Act  of  1903  to  “immi- 
grants” in  the  corresponding  section  of  the  present  act. 
The  real  question  to  be  determined  is  whether,  without  so 
stating  in  terms  that  cannot  be  misunderstood,  Congress 
intended  to  deprive  foreigners  who  have  been  invited  to 
enter  the  country  of  domiciliary  rights,  acquired  and 
maintained  in  strict  accordance  with  the  law,  merely  be- 
cause when  temporarily  absent  on  their  lawful  errands 
they  have  been  so  unfortunate  as  to  contract  a dis- 
ease, or  to  do  something  which  would  place  them  in  the 
category  of  the  excluded  classes  were  they  seeking  to  enter 
for  the  first  time.  It  was  on  this  broad  ground  that  the 
District  Judge  who  passed  first  on  the  Buchsbaum  case 
appears  to  have  based  his  decision.  “I  lay  no  stress,”  he 
says,  “upon  the  fact  that  the  relator  has  declared  his  in- 
tention to  become  a citizen,  except  as  such  declaration  is 
relevant  to  the  inquiry  whether  he  is  a bona  fide  resident 
of  the  country.  After  an  alien  has  once  become  a resident 
he  is  entitled  to  the  same  liberty  of  movement  enjoyed  by 
residents  and  citizens  alike;  and  until  he  abandons  his 
residence  he  is  no  longer  amenable  to  the  excluding  pro- 
visions of  the  immigration  law.  That  law  is  intended  to 
operate  when  the  immigrant  presents  himself  for  the  first 
time,  but  after  he  has  passed  the  scrutiny  of  the  inspectors 
and  has  been  admitted  he  is  then  entitled  to  the  rights  and 
privileges  of  residents  in  the  United  States  as  long  as  he 
continues  to  be  a member  of  this  class.  * * * Such 

an  immigrant  must  fulfill  certain  requirements  or  he  will 
not  be  allowed  to  land ; but  having  been  once  admitted  and 
having  once  acquired  a residence  in  good  faith,  he  is  not 
obliged  to  stay  in  the  country  until  he  becomes  a citizen  at 
the  risk  of  being  excluded  until  he  returns  to  his  family 
or  his  home.”10 

ioi4i  Fed.  221;  but  see,  contra,  Lo  Po  v.  McCoy,  8 Phil.  Rep.  343,  where 
the  Board  of  special  inquiry  excluded  a returning  Chinese  merchant,  law- 


Status. 


451 


Since  the  attempt  to  re-enter  must,  in  order  to  be  sus- 
tained, be  deemed  to  be  made  with  the  consent  of  the 
United  States,  it  is  plain  that  whether  or  not  the  alien  is 
subject  to  exclusion  must  depend  on  the  facts  of  each  case 
as  it  arises.  It  is  obvious  that,  while  consent  may  be  as- 
sumed to  exist  under  conditions  analogous  to  those  facts 
which  appear  in  the  cases  just  cited,  it  might  not,  on  the 
contrary,  be  assumed  where  the  person  seeking  to  re-enter 
is  a prostitute  or  a procurer  with  a domicile  in  this  coun- 
try. The  court’s  decision  should  not,  it  would  seem,  be 
made  to  depend  on  legal  technicalities.  In  Ueberall  v. 
Williams11  the  relevant  facts  were  that  the  relator  came 
into  the  country  from  Holland  more  than  three  years  be- 
fore the  warrant  for  his  departure  was  issued.  Shortly 
before  the  arrest,  being  in  the  city  of  Niagara  Falls,  in  the 
State  of  New  York,  he  took  a carriage  over  to  the  Canadian 
side  of  the  falls  apparently  for  the  purpose  of  viewing 
them.  After  staying  there  for  an  hour  or  more,  he  came 
back  into  the  State  of  New  York  where  he  was  arrested 
and  ordered  deported  as  an  alien  who  had  entered  the 
country  within  three  years  and  was  a member  of  the  ex- 
cluded classes.  The  nature  of  the  disability  does  not  ap- 
pear from  the  report. 

The  court  said : “The  first  question  to  be  determined  is 
whether  the  relator  entered  this  country  within  three  years 
of  the  time  of  his  arrest.  Since  the  decision  of  the  Circuit 
Court  of  Appeals  of  this  Circuit,  in  re  Annie  Lapina12  this 
question  has  been  authoritatively  settled.  I do  not  see 
how  the  duration  of  the  period  of  absence  in  a foreign 
country  or  its  purpose  can  affect  the  result.  This  par- 

fully  domiciled  in  the  Philippines,  who,  at  the  time  he  sought  to  re-enter 
was  suffering  with  trachoma;  and  because  the  applicant  was  so  afflicted, 
excluded  his  minor  son  who  was  accompanying  him.  The  excluding  de- 
cision was  upheld  by  the  local  Supreme  Court;  see  also  Ko  Poco  v.  McCoy, 
10  Phil.  Eep.  442. 

H187  Fed.  470. 

I2 In  re  Hoffman,  179  Fed.  839;  2nd  Circuit. 


452  The  Exclusion  and  Expulsion  of  Aliens. 

ticular  instance  is  no  doubt  as  extreme  as  can  arise  but  it 
does  not  affect  any  change  in  principle.” 

The  question  presented  by  the  facts  of  the  Hoffman  case 
was  whether  or  not  an  alien  woman  who,  after  her  admis- 
sion, practiced  prostitution  in  this  country,  and  after  re- 
entering under  a false  name  and  by  representing  herself  to 
be  the  wife  of  an  American  citizen,  can  claim  on  arrest 
after  the  second  entry,  immunity  from  the  operation  of  the 
immigration  laws  on  the  ground  of  domicile  previously 
acquired  in  the  United  States.  Yet  the  court,  in  affirming 
the  decision  of  the  court  below  discussing  the  writ  filed  by 
the  petitioner  states  that  “the  single  question  presented  is 
whether  the  provisions  of  the  Act  of  1907  apply  to  an  alien 
who  after  entry  into  this  country  has  remained  here  for 
more  than  three  years,  and  then,  after  a brief  absence 
abroad,  again  seeks  to  enter  the  United  States,”  and  pro- 
ceeds on  the  theory  that  nothing  more  is  involved  than 
“this  question  of  construction  of  the  Act  of  March  3,  1903 
before  us  in  Taylor  v.  United  States.”  13 

It  is  apparent  from  the  language  of  the  court  in  the 
Ueberall  case  that  the  fact  that  the  applicant  was  found 
to  be  an  alien  suffering  from  a disability  which  operates  to 
exclude  under  the  immigration  law,  irrespective  of 
whether  domicile  has  been  acquired,  was  thought  sufficient 
to  prohibit  the  court  from  interfering  on  behalf  of  the 
petitioner — in  other  words,  that  no  matter  how  many 
times  any  domiciled  alien  leaves  the  country,  if  even  for 
an  hour,  he  is  always  subject  to  the  operation  of  the  act. 
That  this  is  directly  contra  to  the  weight  of  authority  the 
cases  cited  above  show.  A still  more  recent  expression  of 
opinion  on  the  general  question  is  to  be  found  in  the  case 
of  Lewis  v.  Frick.14  There  the  petitioner  had  lawfully 
entered  this  country  in  1904  and  was  domiciled  here.  In 
November,  1910,  he  crossed  the  Canadian  line  into  Canada 
and  returned  within  an  hour  with  a woman  whom  he 

13 Ante,  p.  427. 

i*189  Fed.  146,  reversed  in  195  Fed.  693. 


Status. 


453 


claimed  was  his  wife.  He  was  arrested  and  indicted  by 
the  grand  jury  on  the  charge  of  importing  the  woman  into 
the  United  States  for  an  immoral  purpose.  On  being 
acquitted  he  was  arrested  and  held  for  deportation  on 
four  separate  charges,  including  that  on  which  he  had 
been  indicted  and  acquitted.  The  court  held  that  there 
was  no  authority  under  the  immigration  law  for  deport- 
ing an  alien  because  he  has  imported  a woman  for  immoral 
purposes,  in  the  absence  of  a conviction  of  the  offense 
obtained  under  criminal  process,  as  provided  by  section 
3.  In  the  course  of  the  opinion  the  court  said:  “There 
has  been  great  diversity  of  holding  under  varying  cir- 
cumstances as  to  the  effect  of  a temporary  return  to  his 
native  country  by  an  alien  who  had  established  a domi- 
cile in  this  country.  Sometimes  it  is  quite  clear  that  the 
return  therefrom  to  this  country  must  be  considered  a 
new  entry  and  sometimes  whether  a new  entry  might  be 
a question  of  fact;  but  I find  no  case  supporting  the 
theory  that  where  an  alien  has  an  established  residence 
and  occupation  in  this  country,  which  has  extended,  as  in 
this  case,  for  six  years,  and  when  he  crosses  the  border, 
not  into  his  native  country  but  into  another  foreign  coun- 
try, and  so  crosses  for  a mere  temporary  purpose  and  re- 
turns within  an  hour,  particularly  at  a point  like  the  De- 
troit-Windsor  crossing,  where  hundreds  are  crossing  and 
recrossing  every  day,  I can  find  no  support  for  the  theory 
that  the  return  in  such  case  must  be  considered  as  the 
entry  to  which  the  immigration  laws  relate.”  15 

2 While  Physically  Here  or  Abroad  Commits  Some  Act 
Which  Renders  Him  Subject  to  Expulsion. 

If  an  alien  who  has  lawfully  entered  the  country  can 
lose  rights  of  domicile  legally  acquired  it  must  be  by  some 
positive  declaration  of  the  municipal  law.  Section  3 spe- 
cifically designates  in  the  following  terms  how  domiciliary 
rights  thus  acquired  shall  be  forfeited  by  the  alien : 

Reversed  in  Frick  v.  Lewis,  195  Fed.  693 ; and  see  ex  'parte  Pouliot,  196 
Fed.  437. 


454:  The  Exclusion  and  Expulsion  of  Aliens. 

“Any  alien  who  shall  be  found  an  inmate  of  or  con- 
nected with  the  management  of  a house  of  prostitution  or 
practicing  prostitution  after  such  alien  shall  have  entered 
the  United  States,  or  who  shall  receive,  share  in,  or  de- 
rive a benefit  from,  any  part  of  the  earnings  of  any  prosti- 
tute ; or  who  is  employed  by,  in,  or  in  connection  with, 
any  house  of  prostitution  or  music  or  dance  hall  or  other 
place  of  amusement  or  resort  habitually  frequented  by 
prostitutes  or  where  prostitutes  gather,  or  who  in  any 
way  assists,  protects  or  promises  to  protect  from  arrest, 
any  prostitute,  shall  be  deemed  to  be  unlawfully  within  the 
United  States  and  shall  be  deported  in  the  manner  pro- 
vided by  sections  twenty  and  twenty-one  of  this  act.” 

The  commission  of  any  of  the  prohibited  acts  or  partici- 
pation in  any  employment  or  calling  enumerated  in  this 
section,  if  detected  by  the  authorities,  means  the  with- 
drawal of  the  consent  of  the  sovereign  to  remain;  conse- 
quently, it  needs  no  argument  to  show  that  the  claim  to 
enter,  based  as  it  would  necessarily  be  on  domiciliary 
rights  which  have  been  revoked,  could  find  no  justification 
whatsoever. 

The  followings  cases,  although  not  arising  in  connection 
with  circumstances  involving  a return  of  the  alien  from  a 
temporary  absence  abroad,  are  examples  of  the  applica- 
tion of  this  principle. 

In  the  case  of  Sire  v.  Berkshire,16  the  facts  were  that 
an  alien  woman  who  entered  this  country  in  April,  1906, 
and  who  had  been  arrested  in  July,  1909,  charged  with 
being  unlawfully  in  the  country,  but  had  been  discharged, 
was  re-arrested  in  February,  1911,  after  the  Act  of  March 
26,  1910,  had  gone  into  effect,  on  the  charge  of  engaging  in 
prostitution.  The  court  said:  “It  does  not  appear  from 
the  order  of  the  Secretary  nor  from  the  allegations  of 
her  petition  that  she  was  arrested  for  practicing  prosti- 
tution or  for  being  an  inmate  of  a house  of  prostitution 
prior  to  the  passage  of  the  Act  of  1910.”  The  order  was 
based  on  acts  committed  after  that  time  which  were  such 


16185  Fed.  967. 


Status. 


455 


as  to  entail  a loss  of  such  rights  of  domicile  as  she  had 
acquired  under  express  legislation  to  that  effect.  Conse- 
quently, her  plea  of  prior  domicile  could  not  avail  her. 
The  same  result  was  reached  in  United  States  v.  Prentis,17 
where  the  woman  arrived  here  in  1906,  and  was  arrested  in 
June,  1910,  on  the  charge  of  being  an  inmate  of  a house  of 
prostitution;  and  in  the  United  States  ex  rel.  Mango  v. 
Weis,18  in  which  case  the  court  said : “She  is  not  now  being 
deported  since  the  passage  of  the  act  because  she  was  an 
inmate  of  a house  of  prostitution  before  the  passage  of  the 
act,  but  because  she  was  an  inmate  of  a house  of  prostitu- 
tion after  its  passage.” 

These  decisions  are  in  entire  accord  in  principle  with 
prior  decisions  rendered  under  the  Act  of  1907  and  before 
the  amendment  of  its  third  section,  in  holding  that  previ- 
ously acquired  rights  of  domicile  give  rise  to  no  vested  right 
to  enter  or  remain  under  conditions  under  which  the  law 
expressly  declares  that  they  shall  be  forfeited.19  Simi- 
larly, section  3,  as  amended  by  the  Act  of  1910,  has  been 
held  to  apply  to  all  aliens,  prostitutes  and  others  carrying 
on,  or  connected  with,  like  pursuits,  whether  they  entered 
prior  to  or  after  the  enactment  of  the  amendment.  This  is 
the  necessary  result  of  the  wording  of  the  amendment 
which,  if  construed  otherwise,  would  be  without  the  effect 
which  it  was  obviously  intended  to  produce.20  The  same 
result  was  reached  in  decisions  rendered  prior  to  the 
amendment,  where  the  claim  was  made- that  prostitutes  ar- 
riving under  the  Act  of  1903  were  not  subject  to  expulsion 
or  exclusion  under  section  3;  but  the  exemption  claimed 
was  held  to  be  avoided  by  section  28  of  the  act  which  pro- 
vides that  “nothing  contained  therein  shall  be  held  to 
affect  any  prosecution  brought,  or  any  act  done  or  existing 

iU82  Fed.  894. 

18181  Fed.  860. 

i^See  Ex  parte  Durand,  160  Fed.  558;  Looe  Shee  v.  North,  170  Fed.  566. 

zoSire  v.  Berkshire,  185  Fed.  967;  United  States  v.  Prentis,  182  Fed.  894; 
United  States  v.  Weis,  181  Fed,  860,  supra. 


456  The  Exclusion  and  Expulsion  of  Aliens. 

at,  the  time  of  the  taking  effect  of  the  act,  but  that  as  to 
all  such  prosecutions  or  acts  and  matters  the  laws  or  parts 
of  laws  repealed  or  amended  by  this  act  are  hereby  con- 
tinued in  force  and  effect.”  21 

The  condition  of  the  law  as  to  prostitutes  and  others 
engaged  in  or  connected  with  similar  pursuits  is  that 
under  section  2 their  admission  into  this  country  is  pro- 
hibited while  section  3 makes  it  impossible  for  such  per- 
sons to  remain;  and  the  law  applies  equally  to  those  who 
are  prostitutes  at  the  time  of  entry  or  become  so  after  the 
acquisition  of  a domicile  here.  Again,  it  would  seem 
that  it  is  the  fact  of  their  prostitution  which  makes  it  im- 
possible for  them  to  enter  or  remain ; their  right  to  do  so 
does  not  depend  on  the  place  where  the  acts  of  prostitu- 
tion are  committed.  It  would  now  be  idle  for  an  alien 
woman  who,  while  domiciled  here,  had  led  a blameless 
life,  to  enter  upon  immoral  practices  while  abroad  and 
then  attempt  to  base  her  right  to  return  on  the  plea  that 
her  rights  of  domicile  had  not  been  forfeited  by  her  acts. 
Since  the  right  to  return  can  only  be  claimed  as  one  of 
the  rights  incidental  to  a continuing  domicile,  the  cor- 
relative obligations  incident  to  such  residence  cannot  be 
avoided;  and  since  the  state  has  declared  that  the  reten- 
tion of  a domicile  acquired  in  this  country  is  conditional 
on  the  maintenance  of  a certain  moral  standard,  it  is  obvi- 
ous that  the  intention  of  the  law-making  power  was  to 
provide  that  failure  to  do  so  by  an  alien  must  terminate 
ipso  facto  all  rights  made  dependent  thereon. 

3.  When  the  Alien  When  Abroad  Becomes  or  Remains 
a Member  of  a Class  Excluded  from  Admission — Such 
as  Polygamists  and  Anarchists. 

If  an  alien  who  has  lawfully  entered  this  country  and 
acquired  and  maintained  a lawful  domicile  here  becomes, 
during  a temporary  visit  abroad,  converted  to  the  tenets 

2i Ex  parte  Durand,  160  Fed.  558;  Looe  Shee  v.  North,  170  Fed.  566. 


Status. 


457 


of  polygamy,  can  he,  when  seeking  to  be  readmitted  in 
this  capacity,  base  his  right  to  enter  on  existing  domicili- 
ary rights?  It  is  plain  that  he  can  do  so  successfully, 
granted  that  the  entering  into  his  new  and,  to  us,  objec- 
tionable, belief  does  not,  ipso  facto , put  an  end  to  such 
rights  unless  an  intention  that  such  a result  will  follow 
is  to  be  found  in  the  statute.  On  the  one  hand,  it  can  be 
urged  that  the  designation  of  such  persons  as  members  of 
the  excluded  classes  is  of  itself  sufficient  to  show  it  was 
the  intention  of  Congress  not  to  permit  them  to  acquire  a 
domicile,  and,  consequently,  not  to  retain  one,  if  acquired ; 
that  all  aliens  seeking  admission  to  this  country  do  so  with 
the  knowledge  that  if  found  to  belong  to  certain  classes 
they  will  be  subject  to  exclusion  and  hence,  that  if  allowed 
to  enter,  it  is  only  on  the  condition  that  they  will  continue 
to  maintain  their  unobjectionable  personal  status ; that  by 
allowing  aliens  unobjectionable  at  the  time  of  entry  to 
enter  and  establish  their  homes  here,  it  was  not  the  inten- 
tion of  Congress  to  make  it  possible  for  the  alien,  during  a 
temporary  absence  abroad,  to  become  of  his  own  will  a 
member  of  a class  excluded  by  law,  and  to  re-enter  unmo- 
lested by  the  immigration  officials. 

On  the  other  hand,  it  can  be  said  that  in  allowing  aliens 
to  enter  and  reside  here  the  state  guarantees  them  the 
free  enjoyment  of  domiciliary  rights  to  the  same  extent 
as  enjoyed  by  Americans,  except  in  so  far  as  those  rights 
are  or  may  be  restricted  by  such  conditions  as  Congress 
may  see  fit  to  impose,  and  that  these  conditions  must  be 
clearly  expressed,  either  directly  or  by  implication,  in 
the  law  governing  the  subject;  that  after  being  admitted 
an  alien  can  only  be  expelled  when  found  unlawfully  here, 
and  that  in  order  to  be  found  unlawfully  here  he  must  be 
found  to  have  entered  contrary  to  law,  or  to  have  com- 
mitted some  act  which,  after  entry  (and  whether  entry 
is  lawful  or  unlawful ) , gives  the  state  the  right  to  deport 
him ; that  in  the  only  section  in  which  provision  has  been 
made  for  the  deportation  of  aliens  who  have  acquired  a 


458  The  Exclusion  and  Expulsion  of  Aliens. 


domicile  here  because  of  the  commission  of  prohibited 
acts  or  by  being  or  becoming  members  of  objectionable 
classes,  polygamists  are  not  included  as  of  the  number; 
and  that,  finally,  when  Congress  has  not  seen  fit  to  exer- 
cise its  undoubted  power  of  terminating  domiciliary  rights 
lawfully  acquired  when  he  who  enjoys  them  is  actually  in 
the  country,  it  cannot  be  assumed,  in  the  absence  of  spe- 
cific legislation,  to  have  intended  to  put  an  end  to  them 
merely  because  the  possessor,  at  the  time  of  the  assump- 
tion of  the  objectionable  status,  happens  to  be  beyond  the 
territorial  limits  of  the  United  States. 

The  latter  view  would  seem  to  be  the  sounder  of  the  two, 
and  to  apply  in  the  case  of  all  lawfully  domiciled  aliens 
other  than  those  excepted  from  its  operation  through  hav- 
ing been  made  the  object  of  special  legislation  looking 
toward  the  loss  of  residential  rights  by  the  commission  on 
their  part  of  prohibited  acts. 

4.  Who,  When  Abroad,  Commits  An  Act  Which,  if 

Committed  Here,  Would  Not  Render  Him  Liable  to 

Expulsion. 

If  the  view  is  correct  that  domiciliary  rights,  in  the  ab- 

sence of  municipal  provisions  stating  the  conditions  under 

which  they  are  subject  to  termination,  coupled  with  the 

fulfilment  of  the  condition,  continue  to  exist  in  aliens  who, 

when  abroad,  voluntarily  assume  a status  which  would 

subject  them  to  exclusion  had  no  domicile  been  acquired, 

it  must  be  conceded  that  the  same  principle  is  applicable 

to  the  case  of  a domiciled  alien  who,  when  abroad,  commits 

some  act  or  misdemeanor  involving  moral  turpitude. 

That  its  commission  in  this  country  could  not  affect  domi- 

ciliary rights  is  well  settled.4 * * * * * * * * * * * * * * * * * 22  “ Jurisdiction  to  deport,” 

said  the  court  in  the  Frick  case,23  “cannot  rest  on  this 

charge;  and  that  is  without  regard  to  the  date  of  the  of- 

22Lewis  v.  Frick,  189  Fed.  146 — reversed  in  195  Fed.  693;  Ex  parte 

Saraceno,  182  Fed.  955;  Ex  parte  Koerner,  176  Fed.  478. 

28  Supra. 


Status. 


459 


fense  which  was  long  after  Lewis’  actual  entry  into  the 
United  States.  The  latter  consideration  alone  would  end 
the  question.”  Since  Congress  has  not  seen  fit  to  make 
the  commission  of  such  an  act  within  the  territorial  limits 
of  the  United  States  affect  the  alien’s  right  to  remain  or 
enjoy  domiciliary  rights  lawfully  acquired,  it  is  hard  to 
perceive  why  it  should  operate  to  terminate  them  when 
done  under  circumstances  where  it  would  have  no  effect 
whatsoever  on  the  members  of  the  community  in  which 
the  offender  is  domiciled. 

An  interesting  state  of  facts  is  presented  by  the  case  of 
United  States  ex  rel.  Funaro  v.  Watchorn.24  The  peti- 
tioner, an  alien,  came  to  the  United  States  in  1901,  when 
he  was  duly  admitted,  and  took  up  his  residence  in  Pitts- 
burgh, where  he  remained  for  six  years.  In  1907  he  went 
to  Italy  for  a visit  and  on  his  return  in  May,  1907,  was  de- 
tained by  the  immigration  inspector  as  a person  not 
clearly  entitled  to  land.  Upon  his  examination  before 
the  board  of  special  inquiry  he  admitted  that,  before  his 
first  arrival,  seven  years  previous,  he  had  stabbed  a man 
in  Italy  for  an  unprovoked  assault  for  which  he  was  con- 
victed and  sentenced  to  imprisonment  for  three,  months. 
He  was  excluded  from  admission  and  petitioned  for  a 
writ  of  habeas  corpus  on  the  ground  that  he  belonged  to  a 
particular  class  of  resident  aliens  excepted  from  the  opera- 
tion of  the  immigration  act  under  Rule  4 of  the  immigra- 
tion regulations  of  the  Department  of  Commerce  and 
Labor.  The  court  found  that  he  did  not  belong  to  such 
class  and  accordingly  dismissed  the  writ.  While  the  case 
does  not  furnish  an  example  of  a lawful  entry  in  the  first 
instance,  since,  at  any  time  within  three  years  after  the 
entry  the  petitioner,  had  the  facts  been  known,  could  have 
been  deported  under  section  21  of  the  Act  of  1903  on  the 
ground  of  being  unlawfully  in  the  United  States,  it  would 
seem  that,  after  the  expiration  of  that  period,  his  presence 


24164  Fed.  152. 


460  The  Exclusion  and  Expulsion  of  Aliens. 

was  lawful,  at  least  in  the  sense  that  he  had,  under  the 
law,  acquired  the  right  to  remain  unmolested  in  the  en- 
joyment of  his  domiciliary  rights.  His  domicile  had 
been  acquired  long  prior  to  the  expiration  of  that  period — 
but  not  haying  been  acquired  with  the  consent  of  the 
United  States  it  could  have  been  terminated  at  any  time, 
and,  had  he  left  before  the  expiration  of  the  period,  he 
could  not  have  based  his  claim  to  return  on  the  existence 
of  a domicile  to  which  he  had  no  right.  But,  having  been 
admitted  to  residence  under  the  forms  of  law,  his  presence 
was  presumed  to  be  lawful  until  the  contrary  should  be 
proved  by  the  appropriate  officials.  The  time  within 
which  this  proof  could  be  presented  is  specifically  limited 
by  Congress.  What  can  this  mean  except  that  Congress, 
satisfied  that  a residence  apparently  lawfully  acquired  is 
what  it  appears  to  be,  henceforth  gives  its  complete  and 
unqualified  assent  to  its  continuance  and  to  the  exercise 
of  all  rights  incident  thereto?  If,  after  the  expiration 
of  the  three  year  period,  the  authorities  had  learned  of  the 
commission  of  the  act,  which  at  the  time  of  his  first  arrival 
would  have  been  a bar  to  his  admission,  they  would  have 
been  powerless  to  expel  him.  His  domiciliary  rights  were 
thereby  fixed,  except  in  so  far  as  they  were  subject  to  re- 
striction or  loss  by  subsequent  municipal  legislation,  or 
subject  to  abandonment  at  his  election.  The  act,  by  vir- 
tue of  its  own  provisions,  having  condoned  the  effect  of  a 
pre-existing  disability,  it  can  hardly  be  said  that  the  peti- 
tioner’s presence  on  return  from  abroad  would  come  within 
the  mischief  which  the  statute  seeks  to  avoid.25 

5.  Where  the  Conditions  Under  Which  the  Alien  En- 
tered Under  an  Earlier  Act,  and  Which  Involved  No 

25ln  the  ease  of  Prentis  v.  Stathakos,  192  Fed.  469,  the  facts  were  that 
the  defendant  when  a child  of  fourteen  killed  another  person  in  Greece, 
his  country  of  origin,  was  tried  and  convicted  of  the  crime  and  on  the 
termination  of  his  sentence  came  to  this  country  and  lived  here  for  ten 
or  fifteen  years  as  a law-abiding  resident  with  a good  record.  On  the  ex- 


Status. 


461 


Question  of  Physical,  Mental,  or  Moral  Disability, 
Would  Have  Constituted  a Bar  to  His  Admission 
Had  He  Attempted  to  Enter  for  the  First  Time  Under 
the  Present  Act. 

Of  course  where  the  alien  has  entered  this  country  as  a 
contract  laborer  and  the  immigration  acts  in  force  at  the 
time  of  entry  do  not  exclude  contract  laborers,  a domicile 
thus  acquired  is  perfectly  lawful  in  character  and  cannot 
be  lost  except  by  express  statutory  provision  to  that  ef- 
fect.26 Thus  it  has  been  held  that  under  these  facts  the 
Act  of  1907,  which  excludes  contract  laborers,  does  not 
include  the  alien  returning  under  these  conditions  within 
its  operation.27  It  is  obvious  that  the  returning  alien 
was  not,  at  the  time  of  his  return,  a laborer  who  had  been 
“induced  or  solicited  to  migrate  to  this  country  by  offers 
or  promises  of  employment  to  perform  labor”  in  this  coun- 
try of  any  kind.  The  use  of  the  word  “migrate”  in  section 
2 of  the  act  shows  beyond  peradventure  of  doubt  that  it 
had  no  application  to  foreign  laborers  already  established 
here. 


(2.)  Where  the  Original  Entry  is  Unlawful. 

1.  When  the  Alien  Seeks  to  Re-enter  Within  the  Three- 

year  Period. 

Just  as  Chinese  merchants  who  present  the  proper  cre- 
dentials for  entry  prescribed  by  the  exclusion  laws  are 
presumed  to  have  the  right  to  enter  this  country,  and,  if 
i'd.  dUed  on  the  contents  of  the  certificate,  are  presumed 

pitati'n  d this  period  he  went  to  Greece  on  a visit  and  in  less  than  three 
years  after  his  return  was  arrested  by  the  administrative  authorities  to 
whom  he  divulged  the  fact  of  his  former  conviction.  The  Circuit  Court 
of  Appeals  of  the  Seventh  Circuit  refused  to  interfere  with  the  order  of 
deportation;  and  see  United  States  ex  rel.  Elliopulos  v.  Williams,  192  Fed. 
536. 

26And  see  In  re  Lea,  126  Fed.  234. 

27Botis  v.  Davies,  173  Fed.  996;  Davies  v.  Manolis,  179  Fed.  818. 


462  The  Exclusion  and  Expulsion  of  Aliens. 


to  have  the  right  to  remain  until  the  contrary  is  proved  by 
the  Government,  so,  also,  aliens  who  are  admitted  under 
the  forms  prescribed  by  law  are  to  be  presumed  to  be  law- 
fully in  this  country  until  the  contrary  is  found  by  the 
Secretary  of  Commerce  and  Labor  to  be  the  case  within 
the  period  of  three  years  after  entry.  As  before  pointed 
out,  it  would  seem  that  this  provision  would  have  no  sig- 
nificance whatever  unless  it  was  the  purpose  of  Congress 
by  limiting  the  time  within  which  the  Secretary  of  Com- 
merce and  Labor  can  deport,  to  confirm  the  alien  in  those 
rights  of  domicile  hitherto  enjoyed,  subject  to  termination 
at  the  discretion  of  the  appropriate  administrative  author- 
ity.28 

Care  must  be  taken  to  distinguish  between  the  condi- 
tional acquisition  of  domiciliary  rights  by  the  mere  fact 
of  residence  in  the  country  before  the  expiration  of  the 
three  year  period  of  residence,  and  the  permanent  acquisi- 
tion thereof  by  their  maintenance  and  enjoyment  after  the 
probationary  period  has  passed.  It  is  only  aliens  who 
have  entered  the  country  unlawfully  to  whom  the  three 
year  provision  applies.  Another  distinct  class  consists  of 
those  who,  although  entering  lawfully,  have  forfeited  their 
right  to  remain  under  the  Act  of  March  26,  1910.  These 
are  subject  to  deportation  without  reference  to  the  time 
of  their  entry. 

Not  only  does  the  right  of  the  Secretary  to  deport  within 
the  statutory  period  apply  to  aliens  who  have  entered  un- 
lawfully by  succeeding  in  evading  the  watchfulness  of  the 
immigration  officers,  but  to  those  who,  although  having 
been  found  competent  to  enter,  have  later  been  held  to 
be  unlawfully  in  this  country.  Thus  it  has  been  held  that 
the  fact  that  a board  of  special  inquiry  as  constituted 
by  the  Act  of  March  3,  1903,  has  passed  favorably  on  the 

28The  raison  d’etre  of  the  so-called  probationary  period — distinct  from 
that  of  the  effects  of  its  limitation  to  three  years — is  in  part  at  least  to  give 
the  governmental  officers  the  opportunity  to  determine  whether  the  entry  of 
an  alien  was  unlawful. 


Status. 


46:j 

right  of  an  alien  to  enter  the  United  States  does  not 
exempt  him  from  expulsion  if  later  found  to  be  unlawfully 
here.29  It  has  long  been  settled  that  the  favorable  deci- 
sions of  the  board  are  binding  “only  where  they  are  most 
likely  to  be  questioned — in  the  courts,”  and  that  they  do 
not  constitute  res  adjudicata  as  against  a contrary  finding 
by  the  Secretary  of  Commerce  and  Labor;30  and  it  has 
been  held  that  the  acquittal  of  a criminal  charge  is  not  res 
adjudicata  of  the  same  facts  when  charged  again  in  de- 
portation proceedings.31  Although  by  entering  and  taking 
up  his  residence  here  the  alien  enters  upon  the  enjoyment 
of  domiciliary  rights,  they  remain  subject  to  termination 
within  the  period  designated  by  the  state  as  that  within 
which  it  may  exercise  its  right  to  expel  him. 

Section  21  provides  that  in  case  the  Secretary  of  Com- 
merce and  Labor  finds  that  an  alien  is  unlawfully  here, 
“he  shall  cause  such  alien  within  the  period  of  three  years 
after  landing  or  entry  therein  to  be  taken  into  custody 
and  returned  to  the  country  whence  he  came.” 

Although  it  has  been  held  that  the  actual  act  of  de- 
portation must  take  place  before  the  three  year  period  ex- 
pires,32 the  weight  of  authority  seems  to  be  to  the  effect 
that,  under  the  present  act  it  is  sufficient  if  deportation 
proceedings  have  actually  commenced  within  that  time, 
and  that  the  Government  is  entitled  to  a reasonable  time 
within  which  to  deport;33  and  that,  if  it  is  impossible  to 
deport  him  within  the  statutory  period  because  he  is  serv- 

29Pearson  v.  Williams,  136  Fed.  734. 

30Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029;  Lew  Quen  Wo 
v.  United  States,  184  Fed.  685;  United  States  v.  Nakashima,  160  Fed.  842; 
and  see  Chin  Yow  v.  United  States,  208  U.  S.  8,  52  Law  Ed.  369;  Mar  Bing 
Guey  v.  United  States,  97  Fed.  576;  United  States  v.  Lau  Sun  Ho,  85  Fed. 
422. 

siWilliams  v.  United  States,  186  Fed.  479. 

32Botis  v.  Davies,  173  Fed.  996. 

33Matsumura  v.  Higgins,  187  Fed.  601;  United  States  v.  International 
Mercantile  Marine  Co.,  186  Fed.  669;  United  States  ex  rel.  Calamia  v. 
Redfern,  180  Fed.  506;  but  see  contra , International  Mercantile  Marine 
Co.  v.  United  States,  192  Fed.  887,  reversing  186  Fed.  669,  supra. 


464  The  Exclusion  and  Expulsion  of  Aliens. 


mg  a prison  term  for  the  commission  of  an  offense  against 
the  local  laws,  that  fact  will  not  be  allowed  to  stand  in 
the  way  of  his  deportation.34 

Some  difference  of  judicial  opinion  exists  regarding  the 
time  when  the  three  period  begins  to  run.  The  act  says 
that  deportation  may  take  place  “within  the  period  of 
three  years  after  landing  or  entry.”  This  has  been  con- 
strued to  mean  that  the  probation  period  runs  from  the 
date  of  the  last  entrance;35  on  the  other  hand,  the  words 
“landing  or  entry”  were  held,  in  a later  decision,  to  refer 
to  the  date  of  the  alien’s  first  entrance  into  the  United 
States.36  This  question  may,  however,  be  most  advan- 
tageously examined  in  connection  with  the  cases  in  which 
it  has  arisen.  The  fact  that  the  Government  reserves  to 
itself  the  right  to  deport  within  three  years  after  entry, 
constituting  a clear  declaration  of  the  fact  that  aliens 
who  are  unlawfully  here  cannot  acquire  indefeasible  rights 
of  domicile  because  of  their  unlawful  entry,  applies  irre- 
spective of  whether  the  alien  remains  in  the  country  dur- 
ing the  statutory  period  or  departs  on  a temporary  visit 
abroad.  By  going  abroad  with  the  purpose  of  returning, 
the  rights  of  domicile,  such  as  they  are,  are  not  abandoned ; 
but  the  alien  who  returns  within  the  three  year  period  and 
is  discovered  to  have  entered  unlawfully  in  the  first  in- 
stance, never  having  maintained  those  rights  for  the  period 
within  which  the  state  could  terminate  them,  they  could 
not  justify  the  claim  to  re-enter,  which,  as  has  already 
been  pointed  out,  must,  in  order  to  be  successful,  be  based 
on  existing  domiciliary  rights  maintained  with  the  con- 
sent of  the  state. 

2.  Where  He  Leaves  Before  the  Period  Has  Run,  and 
Returns  After  Its  Expiration. 

3*Matsumura  v.  Higgins,  187  Fed.  601;  Calamia  v.  Kedfern,  180  Fed.  506. 

ssUnited  States  v.  Hook,  166  Fed.  1007 ; United  States  v.  Sprung,  187 
Fed.  903. 

36Lewis  v.  Frick,  189  Fed.  146;  Eedfern  v.  Halpert,  150;  but  see  contra 
Frick  v.  Lewis,  195  Fed.  693,  and  Siniscalchi  v.  Thomas,  195  Fed.  701. 


Status. 


465 


Nor  could  an  alien  who  has  entered  unlawfully  and 
established  his  home  here  depart  prior  to  the  expiration  of 
the  period  and,  by  returning  after  it  has  run,  hope  to 
avoid  the  operation  of  the  act  if  held  for  deportation  on 
the  ground  of  being  unlawfully  in  the  country.  It  is  obvi- 
ous that  it  is  only  the  uninterrupted  physical  maintenance 
of  a residence  for  the  three  year  period  that  can  lay  the 
foundation  for  the  claim  that  domiciliary  rights  have  been 
acquired  free  from  the  operation  of  the  provisions  of  sec- 
tion 21.37 

The  same  principle  would  seem  to  apply  to  cases  arising 
under  section  3 of  the  Act  of  1907  prior  to  its  amendment 
by  section  3 of  the  Act  of  March  26,  1910.  Before  its 
amendment  the  section  provided  that  any  alien  woman 
or  girl  who  shall  be  found  an  inmate  of  any  house  of  pros- 
titution or  practicing  prostitution  at  any  time  within 
three  years  after  she  shall  have  entered  the  United  States, 
shall  be  deemed  to  be  unlawfully  within  the  United  States 
and  shall  be  deported.  By  the  repeal  of  this  section  by 
the  Act  of  March  26,  1910,  deportation  may  in  these  and 
other  specified  cases  take  place  at  any  time  after  the  orig- 
inal entry,  lawful  or  otherwise. 

3.  When  He  Leaves  After  the  Expiration  of  the  Three- 

year  Period. 

Before  the  amendment  of  section  3 of  the  Act  of  1907 
by  section  2 of  the  Act  of  March  26,  1910,  the  situation 
of  the  alien  who  entered  this  country  unlawfully  and  that 
of  the  alien  woman  or  girl  who,  within  three  years  after 
entry,  was  found  practising  prostitution,  was,  with  regard 
to  the  defeasible  nature  of  domiciliary  rights  acquired  by 
residence,  identical.  Members  of  both  classes  were  subject 
to  an  order  of  arrest  on  the  charge  of  unlawful  presence 
here  and  to  deportation  within  the  statutory  period.  Both 
classes  may  then  be  properly  considered  under  this  sec- 
tion. 

37See  Lavin  v.  Lefevre,  125  Fed.  693. 


466  The  Exclusion  and  Expulsion  of  Aliens. 

With  regard  to  the  first,  that  of  aliens  who  have  entered 
unlawfully  and,  after  a residence  here  of  three  years  or 
more,  depart  temporarily  and  then  return  to  this  country, 
it  is  not  unnatural  that  the  number  of  precedents  should 
be  extremely  small.  If  a foreigner  has  remained  here  for 
the  statutory  period  without  the  fact  of  his  unlawful 
presence  being  discovered,  the  chances  are  greatly  in  favor 
of  its  never  being  detected  by  the  authorities,  and  that  no 
objection  could  be  found  to  his  return  based  on  that 
ground.  Again,  the  disability  which  at  the  time  of  entry 
would  have  operated  to  exclude  him,  might  have  long  since 
ceased  to  exist. 

But  where  the  disability  takes  the  form  of  membership 
in  a prohibited  class,  such  as  the  prostitute  class,  which  is 
maintained  through  and  beyond  the  three  year  period  and 
even  up  to  the  time  of  re-entry,  the  comparative  abund- 
ance of  cases  arising  under  previous  acts  when  the  three 
year  period  was  in  force  with  regard  to  prostitutes,  is 
easily  explained. 

In  the  case  of  United  States  v.  Hook,  decided  by  the 
District  Court  of  Maryland  in  1908, 38  the  facts  showed  that 
the  alien,  a woman  of  Canadian  birth,  entered  this  coun- 
try in  1901  and  indulged  in  the  practices  of  prostitution 
until  1905.  She  resumed  her  occupation  in  1907,  and  in 
the  fall  of  that  year  returned  temporarily  to  Canada, 
where  she  stayed  four  days,  and  after  her  return  continued 
her  mode  of  life  until  arrested  later  in  the  same  year.  It 
was  contended  that  she  had  acquired  domiciliary  rights 
in  the  United  States  of  which  she  could  not  be  deprived 
under  any  provision  of  the  immigration  law.  But  the 
court  held  that  the  three  year  period  ran  from  the  date 
of  the  new  entry,  and  that,  having  committed  acts  of  pros- 
titution since  that  time,  she  was  subject  to  deportation 
as  one  being  unlawfully  in  the  United  States.  Said  the 
court:  “Even  a person  who  had  been  in  the  United 


38166  Fed.  1007. 


Status. 


4G7 


States  for  some  years  and  who  then  returns  to  the  country 
of  her  nativity  and  citizenship,  and  then  afterwards  re- 
enters the  United  States  for  immoral  purposes,  seems  to 
me  to  be  clearly  within  the  mischief  against  which  the 
provisions  of  the  law  in  question  were  directed  ” 

Here  the  alien  had,  prior  to  the  expiration  of  the  statu- 
tory period,  committed  acts  which  subjected  her  to  being 
found  to  be  unlawfully  in  the  United  States.  But  the 
period  passed  before  any  action  was  taken  against  her. 
She  was  engaged  in  prostitution  while  both  the  Acts  of 
1903  and  1907  were  in  force,  under  either  one  of  which  she 
could  have  been  deported  if  found  within  three  years  after 
entry  to  be  unlawfully  in  this  country.  The  court  found 
that  it  was  the  intention  of  Congress  to  exclude  persons 
in  her  condition  if  found  to  be  indulging  in  prostitution 
six  years  after  she  had  entered.  It  may  well  be  asked  how 
this  conclusion  could  be  reached  in  the  face  of  the  pro- 
visions of  section  3 of  both  the  acts,  which  in  terms  spe- 
cifically refers  to  aliens  indulging  in  such  practices  and 
specifically  limits  the  time  in  which  they  could  be  expelled 
to  three  years.  And  if,  while  remaining  in  the  country, 
she  was  not  subject  to  expulsion  where,  in  the  absence  of 
a declaration  to  that  effect  by  Congress,  could  the  author- 
ity be  found  to  expel  her  merely  because  the  course  of  her 
stay  happened  to  be  broken  by  a visit  of  four  days  across 
the  Canadian  border?  The  fact  of  remaining  here  beyond 
the  statutory  period  could  not,  of  course,,  vest  her  with 
an  indefeasible  right  to  continue  her  residence  here  against 
the  expressed  will  of  the  state.  The  fact  that,  by  the 
amendment  of  1910,  the  three  year  period  was  done  away 
with,  is  sufficient  to  show  that,  in  the  opinion  of  Con- 
gress, the  existing  laws  were  not  competent  to  effect  the 
purpose  aimed  at  in  the  amendment,  and  constitutes 
strong  ground  for  questioning  the  decision. 

A later  decision  by  the  same  court39  indicates,  perhaps, 

39United  States  ex  rel.  Mango  v.  Weis,  181  Fed.  860. 


468  The  Exclusion  and  Expulsion  of  Aliens. 

a change  of  view.  In  that  case  an  alien  woman  who  had 
entered  in  1906  and  a few  months  thereafter  became  a 
prostitute,  was  arrested  in  July,  1910,  under  the  Act  of 
1907,  which,  as  amended,  repealed  the  three  year  limita- 
tion. The  court  refused  to  interfere  on  her  behalf,  say- 
ing: “She  is  not  now  being  deported  since  the  passage  of 
the  act  because  she  was  the  inmate  of  a house  of  prostitu- 
tion before  the  passage  of  the  act,  but  because  she  was 
the  inmate  of  a house  of  prostitution  after  its  passage.  If 
she  had  seen  fit,  after  the  act  was  passed,  to  have  adopted 
another  mode  of  life,  if  any  mode  of  life  was  open  to  her 
in  her  unfortunate  situation,  another  and  different  ques- 
tion would  have  been  presented.”  This  is  an  admission 
that,  having  lived  here  for  four  years  without  being  de- 
ported under  the  Act  of  1907,  there  was  no  authority  to 
deport  her  under  that  act.  As  before  stated,  if  it  is  con- 
ceded that  under  that  act  the  woman  was  free  to  exercise 
her  rights  of  domicile  unmolested  while  in  the  country,  it 
is  difficult  to  perceive  how  a temporary  absence  could, 
under  the  law,  deprive  her  of  rights  thus  acquired. 

If  this  principle  is  correct  in  its  application  to  aliens, 
who,  during  the  period  within  which,  under  section  3 of 
the  immigration  law,  as  originally  enacted,  performed 
acts  which  if  detected  would  have  subjected  them  to  ex- 
pulsion, it  would  seem  a fortiori  to  apply  to  those  who, 
after  the  expiration  of  that  period,  entered  upon  such 
practices.  It  finds  support  in  the  decision  in  the  case  of 
Redfern  v.  Halpert,40  rendered  by  the  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit  in  1911.  The  facts  in  that 
case  show  that  the  alien  arrived  in  this  country,  accom- 
panied by  her  father,  in  1901,  when  13  years  of  age.  Her 
father  left  after  several  years  during  which  she  acquired 
a domicile  in  this  country  Some  time  later,  and  after  the 
expiration  of  three  years  from  the  date  of  original  entry, 
she  practiced  prostitution,  and  in  1909  left  the  United 
States  animo  revertendi,  and  returned  in  1910,  when  she 


<0186  Fed.  150. 


Status. 


460 


was  rejected  as  a prostitute  entering  the  country.  In  quot- 
ing with  approval  from  the  opinion  of  the  court  below, 
which  found  that  when  the  petitioner  entered  in  1901  she 
was  not  a prostitute  but  that  she  was  when  she  returned 
to  this  country,  the  court  said:  “There  is  no  doubt  the 
Secretary  of  Commerce  and  Labor  would  have  the  right 
to  have  her  deported  at  any  time  within  three  years  after 
her  arrival  if  she  had  been  brought  here  for  immoral 
purposes,  or  was  found  within  the  same  period  in  a house 
of  prostitution.  Therefore  the  only  question  to  be  deter- 
mined in  this  case  is,  When  does  the  three  years  begin  to 
run?  Both  relator  and  respondent  have  recited  a number 
of  cases,  none  of  which,  however,  is  of  controlling  author- 
ity. In  my  opinion  the  law  must  be  held  to  mean  that  the 
three  year  period  within  which  an  alien  may  be  deported 
begins  to  run  from  the  date  of  his  first  entrance  into  the 
country,  and  a temporary  absence  with  the  intention  to 
return  cannot  interfere  with  his  status  as  a resident  nor 
give  the  immigration  authorities  the  right  to  deport  him.” 
This  is,  in  effect,  to  apply  the  principle  enunciated  in  the 
Nakashima  and  Rodgers  cases41  to  alien  prostitutes  who, 
prior  to  their  visit  abroad,  have  acquired  rights  of  domi- 
cile securely  vested  in  so  far  as  the  provisions  of  the  Act 
of  1907  apply  to  such  cases. 

Although,  for  the  reasons  hereinbefore  given,  the  de- 
cision appears  to  express  the  correct  view,  it  is  not 
in  accord  with  the  conclusion  reached  by  the  majority 
of  the  courts  which  have  had  occasion  to  pass  upon 
the  precise  point  in  issue — the  right  to  return  of  alien 
prostitutes  who  have  remained  here  for  three  years 
without  steps  being  taken  for  their  expulsion  in  ac- 
cordance with  the  provisions  of  section  3 of  the  Act  of 
1907  prior  to  its  amendment.42  But  although,  in  these 

4i Ante,  pp.  442,  449. 

42United  States  v.  Sprung,  187  Fed.  904;  Ex  parte  Hoffman,  179  Fed. 
839;  Ex  parte  Petterson,  166  Fed.  536;  United  States  v.  Hook,  166  Fed. 
1007;  Ex  parte  Crawford,  165  Fed.  830. 


470  The  Exclusion  and  Expulsion  of  Aliens. 


cases,  the  question  of  the  right  of  prostitutes  to  re-enter  the 
county  was  involved,  these  courts  have,  as  a rule,  seemed 
disinclined  to  base  their  decisions  on  an  interpretation  of 
section  3 of  the  Act  of  1907 — dealing  directly  with  the 
rights  of  prostitutes  as  a class — preferring  to  proceed  on 
the  broad  ground  that  the  excluding  provisions  of  the  Act 
of  1907  operate  on  all  aliens,  as  opposed  to  alien  immi- 
grants, who,  being  outside  the  territorial  limits  of  the 
United  States,  seek  to  come  in.  The  language  of  the  Cir- 
cuit Court  of  Appeals  for  the  Second  Circuit  relative  to 
this  point  has  already  been  adverted  to.43  That  decision 
is  specifically  based  on  the  doctrine  first  enumerated  in  the 
Taylor  case;44  and  that  is  the  ground  generally  taken  by 
the  courts  of  that  circuit,  whether  passing  on  the  right  of 
alien  prostitutes  or  of  others  to  return  to  this  country,  or 
on  questions  germane  thereto.45 

As  has  been  indicated  in  the  preceding  pages,  the  sound- 
ness of  this  view  is  open  to  serious  question.  A better 
ground  for  upholding  these  decisions  would  seem  to  be  ex- 
pressed in  the  decision  in  the  Hook  case,  where  the 
court  expressed  the  opinion  that  to  admit  alien  prosti- 
tutes on  their  return  from  abroad  would  be  to  bring 
the  very  mischief  which  the  statute  seeks  to  avoid.  But 
the  answer  seems  to  be  that  the  courts  were  left  no  dis- 
cretion in  the  premises,  and  section  3,  by  limiting  the 
period  wherein  the  power  of  immigration  officers  to  de- 
port might  be  exercised,  constituted  an  express  decla- 
ration on  the  part  of  Congress  that  even  alien  prostitutes 
should  acquire  the  right  to  maintain  their  domicile  un- 
molested until  the  law-making  power  should  otherwise 
provide.  The  question  has,  however,  in  so  far  as  it  relates 
only  to  the  prostitute  class,  become  academic  since  the 

43 Ante , p.  451. 

44 Ante,  p.  427. 

45United  States  v.  Villet,  173  Fed.  500;  United  States  ex  rel.  Ueberall  v. 
Williams,  187  Fed.  470. 


Status. 


471 


passage  of  the  amending  section  of  the  Act  of  March  26, 
1910. 

D.  The  Acquisition  of  Domicile  as  Affected  by  the 
Minority  of  the  Alien. 

In  the  case  of  Ex  parte  Petterson46  the  facts  were  that 
the  alien,  when  a girl  of  sixteen,  landed  in  the  United 
States  in  1901,  and  resided  here  until  1906,  when  she  left 
for  a temporary  visit  abroad.  Six  months  previous  to  her 
departure  she  had  entered  a house  of  prostitution.  She 
returned  in  September,  1907,  when  she  resumed  her  occu- 
pation as  a prostitute,  and  shortly  thereafter  was  arrested 
on  the  ground  of  being  found  unlawfully  in  this  country. 
The  court,  although  strongly  inclined  to  base  its  decision 
on  the  doctrine  of  the  Taylor  case,47  took  the  view  that  she 
could  not  establish  a domicile  here  while  a minor ; that  her 
minority  depended,  not  on  the  laws  of  Minnesota  where 
she  lived,  and  which  provided  that  women  reach  their 
majority  at  eighteen  years  of  age,  but  upon  the  common 
law ; and  that  a house  of  prostitution  could  not  be  a home; 
that  since  she  became  21  on  the  first  day  of  December,  1906, 
and  left  for  abroad  on  December  2,  1906,  she  could  not 
be  taken  to  have  acquired  a domicile  after  reaching  her 
majority;  and  that  consequently  her  domicile  was  that  of 
her  parent  in  Sweden.  No  weight  was  given  to  the  con- 
ceded fact  that  her  departure  was  taken  with  the  intention 
to  return,  and  that  she  actually  returned  to  this  country 
in  pursuance  of  that  intention.  The  court  was  apparently 
of  the  opinion  that  in  this  case,  at  least,  the  petitioner 
could  only  have  acquired  a domicile  by  remaining  in  the 
country  after  her  majority. 

The  question  of  the  acquisition  of  domicile  by  an  alien 
minor  was  considered  in  the  late  case  of  Redfern  v.  Hal- 
pert,48  decided  by  the  Circuit  Court  of  Appeals  for  the 

46166  Fed.  536. 

nAnte,  p.  427. 

48 Ante,  p.  468. 


472  The  Exclusion  and  Expulsion  of  Aliens. 


Fifth  Circuit  in  1911.  The  facts  in  that  case  have  already 
been  recited.49  The  court  said:  “It  is  contended  by  re- 
spondent that  in  the  instant  case,  the  relator  having  come 
to  the  United  States  as  a minor  child,  could  not  be  con- 
sidered as  having  come  here  with  the  intention  of  acquir- 
ing a domicile,  and,  therefore,  has  no  status  as  a resident. 
I cannot  agree  with  this  view  of  the  case.  It  seems  to 
me  that  no  greater  hardship  could  be  occasioned  than  by 
deporting  an  alien  who  had  come  to  this  country  at  a 
tender  age  and  lived  until  after  majority.  Deportation  in 
such  a case  is  tantamount  to  exile.” 

IV.  Special  Classes  to  Whom  the  Immigration  Act  Does 

Not  Apply. 

A.  Alien  Seamen. 

Bona  fide  members  of  this  class  of  foreigners  have,  from 
the  earliest  period  in  the  history  of  the  immigration  acts, 
almost  invariably  been  held  not  to  be  included  within  the 
excluding  provisions  of  the  law.50  In  the  Taylor  case51  the 
court  decided  that  a ship’s  captain  from  whose  ship  an 
alien  seaman  deserted  while  on  shore  leave,  was  subject 
to  the  penalties  imposed  by  the  Act  of  March  3,  1903,  for 
failing  to  use  due  precautions  to  prevent  aliens  from  land- 
ing in  the  country.  This  decision  was  necessarily  based 
on  the  assumption  that  alien  seamen  were  included  within 
the  excluding  provisions  of  that  act.  But,  as  has  been 
already  shown,52  the  decision  was  reversed  by  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Taylor  v.  United 
States.53  In  the  words  of  the  court:  “It  is  necessary  to 
commerce,  as  all  admit,  that  sailors  should  go  ashore,  and 
no  one  believes  that  the  statute  intended  altogether  to  pro- 

49 Ante,  p.  468. 

BoUnited  States  v.  Sandrey,  48  Fed.  550;  United  States  v.  Burke,  99  Fed. 
895;  23  Op.  Atty.  Gen.  521,  1901. 

siTaylor  v.  United  States  152  Fed.  1,  ante , p.  427. 

MAnte,  p.  428n. 

63207  U.  S.  120,  52  Law  Ed.  130. 


Status. 


473 


Mbit  their  doing  so.  The  contrary  has  always  been  under- 
stood of  the  earlier  acts,  in  judicial  decisions  and  execu- 
tive practice.”  And  the  act  has  been  held  inapplicable  to 
sick  seamen  placed  by  their  officers  in  hospitals  on  shore 
through  inability  to  go  home  on  the  vessel  which  brought 
them  to  the  United  States.64 

Alien  Norsemen”  signing  at  a foreign  port  for  taking 
care  of  the  horses  on  the  vessel  during  the  voyage,  have 
been  held  to  be  “seamen”  for  the  purpose  of  determining 
the  application  as  to  them  of  the  immigration  acts.55 
But  the  court  held  that,  if  discharged  at  the  port  of  entry, 
they  would  be  subject  to  inspection  by  the  immigration  of- 
ficers as  would  any  other  alien  coming  within  the  opera- 
tion of  the  act. 

The  mere  fact  that  an  alien  arrives  at  a port  of  the 
United  States  as  a member  of  a ship’s  crew  does  not  mean 
that  he  is  thereby  exempt  from  the  provisions  of  the  im- 
migration law.  As  the  Supreme  Court  said  in  the  Taylor 
case,58  “Of  course  it  is  possible  for  a master  unlawfully 
to  permit  an  alien  to  land  even  if  the  alien  is  a sailor.” 
The  exemption  of  seafaring  men  from  the  operation  of  the 
act  is  predicated  on  the  fact  that  they  are  what  they  repre- 
sent themselves  to  be,  bona  fide  seamen  in  the  present 
exercise  of  their  calling.  Sailors  are  persons  whose  em- 
ployment consists  in  following  the  sea;  their  presence  in 
our  ports  is  opposed  to  the  idea  that  they  enter  them  in 
order  to  take  up  a residence  in  this  country,  or  for  any 
other  purpose  except  that  of  following  their  profession. 
Of  course  an  alien  who  is  a sailor  may  exercise  the  right 
of  changing  his  residence  to  this  country  without  involv- 
ing the  intention  of  giving  up  his  occupation.  But  in  such 

5<Niven  v.  United  States,  169  Fed.  782. 

ssUnited  States  v.  Atlantic  Transport  Co.,  188  Fed.  42;  as  to  right  of 
alien  ‘ ‘ horsemen  ’ 1 domiciled  in  this  country  to  return  in  spite  of  not  having 
provided  themselves  with  the  certificate  prescribed  by  Treasury  Circular  135 
issued  in  1899,  see  23  Op.  Atty.  278,  Oct.  1900. 

£>8And  see  23  Op.  Atty.  Gen.  521,  1901. 


474  The  Exclusion  and  Expulsion  of  Aliens. 

case  lie  would  be  seeking  admission  to  this  country  in  the 
capacity  of  an  immigrant  and  his  right  to  enter  for  that 
purpose  would  be  conditional  on  his  freedom  from  such 
disabilities  as  operate  to  exclude.  His  presence  hene 
would  not  be  that  of  a seaman  engaged  in  the  ordinary 
pursuits  incident  to  his  vocation. 

Chinese  Seamen. 

Chinese  seamen  have  generally  been  held  to  be  exempt 
from  the  excluding  provisions  of  the  Chinese  exclusion 
acts.59  But  in  order  to  guard  against  abuses  and  to  insure 
their  reshipment  a bond  may  be  required  ;60  and  it  has  been 
held  that  where  the  giving  of  a bond  is  provided  by  the 
rules  of  the  Department  of  Commerce  and  Labor,  the  right 
to  enter  is  conditioned  on  furnishing  the  bond  prescribed.61 
As  in  the  case  of  aliens  of  other  nationalities,  the  fact  that 
a Chinese  person  arrives  at  a United  States  port  as  the 
member  of  a ship’s  crew  does  not  render  him  exempt  from 
exclusion  under  the  Chinese  exclusion  acts,  where  the 
voyage  was  made  with  intent  to  gain  admission  to  this 
country.62 

B.  Alien  Stowaways. 

Alien  stowaways  have  been  held  not  to  come  within  the 
operation  of  the  immigration  acts  ;63  but  it  is  obvious  that 
the  mere  fact  of  being  stowaways  does  not  decide  the  ques- 
tion of  exemption.  No  matter  in  what  way  or  in  what 
capacity  the  alien  enters  the  ship  at  a foreign  port,  the 
question  of  his  right  to  remain  must  depend  on  the  ca- 
pacity in  which  he  seeks  to  remain.  If  it  is  his  intention  to 
take  up  a permanent  abode  here,  or  to  remain  even  tem- 

59United  States  v.  Jamieson,  185  Fed.  165;  In  re  Jam,  101  Fed.  989; 
United  States  v.  Burke,  99  Fed.  895;  In  re  Ah  Kee,  22  Fed.  519;  In  re 
Mon  Can,  14  Fed.'  44;  In  re  Ah  Sing,  13  Fed.  286;  In  re  Ah  Sing,  1 U.  S. 
District  Court,  Hawaii,  15. 

eoUnited  States  v.  Ah  Fook,  183  Fed.  33;  In  re  Jam,  101  Fed.  989. 

eiUnited  States  v.  Crouch,  185  Fed.  907. 

62United  States  v.  Graham,  164  Fed.  655. 

63Cunard  Steamship  Co.  v.  Stranahan,  134  Fed.  318. 


Status. 


475 


porarily  in  any  capacity  other  than  that  of  a sailor,  he 
does  not  come  within  the  terms  of  the  Taylor  decision.64 
But  the  fact  that  he  entered  the  ship  as  a stowaway  is  of 
itself  not  sufficient  under  the  law  to  subject  him  to  inspec- 
tion by  the  immigration  officers,  for  there  is  nothing  in  the 
fact  that  he  so  entered  to  prevent  him  from  assuming  the 
status  of  a seaman. 

In  the  case  of  United  States  v.  Neil  McDonald,  decided 
by  the  Supreme  Court  in  connection  with  the  Taylor 
case,65  there  was  an  allegation  in  the  indictment  against 
the  master  that  the  alien  was  a stowaway  under  order  of 
deportation.  But,  the  court  there  stated  that  there  is 
nothing  in  the  fact  that  an  alien  has  been  refused  leave  to 
land  from  a British  ship  and  has  been  ordered  to  be  de- 
ported to  make  it  impossible,  as  a matter  of  law,  for  the 
British  master  subsequently  to  accept  him  as  a sailor  on 
the  high  seas,  even  if  bound  for  an  American  port. 

C.  Natives  of  the  Insular  Possessions 

Porto  Bicans,  native  inhabitants  of  the  islands  at  the 
time  of  its  cession  by  Spain  to  the  United  States,  are  not 
to  be  considered  aliens  in  the  meaning  of  the  immigration 
act.  In  the  case  of  Gonzales  v Williams,66  the  Supreme 
Court  emphasized  the  fact  that  the  question  to  be  deter- 
mined in  deciding  the  point  as  to  whether  the  immigra- 
tion Act  of  March  3,  1891,  applied  to  native  Porto  Ricans 
was  not  whether  such  persons  were  natives  of  the  United 
States,  but  “the  narrow  one  whether  Gonzales  was  an  alien 
within  the  meaning  of  that  term  as  used  in  the  act.”  In 
reaching  the  conclusion  above  stated  the  court  said : “We 
think  it  clear  that  the  act  relates  to  foreigners  as  respects 
this  country,  to  persons  owing  allegiance  to  a foreign 
government  and  citizen  or  subjects  thereof;  and  that  citi- 
zens of  Porto  Rico  whose  permanent  allegiance  is  due  tc 

64 Ante  p.  472. 

65Taylor  v.  United  States,  207  U.  S.  120,  52  Law.  Ed.  130. 

66192  U.  S.  1,  48  Law  Ed.  317. 


476  The  Exclusion  and  Expulsion  of  Aliens. 

the  United  States,  who  live  in  the  peace  of  the  dominion 
of  the  United  States,  the  organic  law  of  whose  domicile 
was  enacted  by  the  United  States,  and  is  in  force  through 
officials  sworn  to  support  the  Constitution  of  the  United 
States  are  not  ‘aliens,’  and  upon  their  arrival  by  water  at 
the  ports  of  our  mainland  are  not  ‘alien  immigrants’ 
within  the  intent  and  meaning  of  the  Act  of  1891.” 

For  the  same  reasons  it  would  appear  that  natives  of  the 
Philippines  are  not  aliens  within  the  meaning  of  the  pres- 
ent law.67 


6722  Op.  Atty.  Gen.  495,  1899. 


Judicial  Review  of  Administrative  Decisions.  477 


CHAPTER  IV. 


JUDICIAL  REVIEW  OF  ADMINISTRATIVE  DECISIONS. 

I.  In  General. 

A.  Administrative  Officers  final  Judges  on  Questions  of  Fact. 

II.  Prior  to  the  Act  of  August  18,  1894. 

A.  Right  of  Judicial  Review. 

B.  Matters  going  to  the  Jurisdiction  of  Executive  Officers. 

1.  Persons  not  within  the  operation  of  the  Exclusion  or  Immigra- 

tion Acts. 

2.  Acts  in  excess  of  Executive  authority. 

III.  After  the  passage  of  the  Act  of  August  18,  1894. 

A.  Right  of  Judicial  Review. 

B.  Matters  going  to  the  Jurisdiction  of  Executive  Officers. 

1.  Allegation  of  Citizenship  Insufficient  to  give  the  Courts  Juris- 

diction. 

(A.)  When  the  writ  of  Habeas  Corpus  is  applied  for  before 
Administrative  Appeal  is  taken. 

(B.)  Where  the  writ  is  applied  for  after  Administrative  Ap- 
peal is  taken. 

2.  Aliens  not  subject  to  the  operation  of  the  Immigration  Laws. 

(A.)  Domiciled  aliens  returning  to  the  United  States. 

(B.)  Citizens  of  the  insular  possessions. 

(C.)  Alien  seamen. 

3.  When  applicants  status  has  already  been  finally  decided  by 

competent  authorities. 

4.  Loss  of  departmental  jurisdiction  by  alien’s  change  of  status. 

C.  Finality  of  Departmental  Findings  as  to  Right  to  Enter. 

1.  Extent  of  and  to  what  applicable. 

2.  Favorable  decisions  not  final. 

3.  Administrative  findings  of  fact  only  are  final. 

4.  Necessity  for  fair  hearing. 

(A.)  What  constitutes  a fair  hearing. 

(1.)  Opportunity  to  be  heard. 

(2.)  Executive  officers  must  consider  all  the  evidence 
submitted. 

(3.)  Denial  of  the  right  of  appeal. 

(4.)  Obligation  of  departmental  officers  to  pass  on  all 
questions  before  them. 


178  The  Exclusion  and  Expulsion  of  Aliens. 

5.  Departmental  finding  must  constitute  bona  fide  “decision.” 

6.  Abuse  of  authority. 

7.  Questions  of  fact. 

(A.)  Whether  an  alien  an  immigrant  a question  of  fact. 

(B.)  Whether  Chinese  belong  to  exempt  classes  a question 
of  fact. 

(C.)  Citizenship  a question  of  fact  or  a mixed  question  of 
law  and  fact. 

(D.)  Other  questions  of  fact. 

D.  Finality  of  Departmental  Findings  as  to  the  right  to  remain. 

E.  Showing  necessary  to  entitle  Applicant  to  a Judicial 

Hearing. 


I.  In  General. 

Section  2 of  the  Immigration  Act  of  August  3,  1882, 1 
charged  the  Secretary  of  the  Treasury  with  the  duty  of 
executing  the  provisions  thereof;  and  section  3 required 
him  to  establish  such  rules  and  regulations  not  inconsist- 
ent with  the  law  as  he  might  deem  best  calculated  to  pro- 
tect the  United  States  and  the  immigrants  coming  to  the 
United  States  ports,  and  to  carry  out  the  provisions  of  the 
act.  In  the  performance  of  these  general  duties  the  Secre- 
tary was  empowered  to  enter  into  contracts  with  such 
state  commission,  board,  or  officers  as  might  be  designated 
for  that  purpose  by  the  governor  of  any  state.2  This 
power,  however,  was  withdrawn  by  the  Act  of  March  3, 
1891.3 

The  Chinese  exclusion  Act  of  1882, 4 prohibiting  the  fur- 
ther immigration  of  Chinese  laborers  into  the  United 
States,  and  providing  for  the  issuance  of  certificates  the 
possession  of  which  was  to  entitle  those  laborers  already 
in  the  country  to  entry  on  return,  and  Chinese  members 
of  the  exempted  classes  to  entry,  designated  the  collector 
of  customs  as  the  authority  to  pass  on  the  right  of  those 
seeking  admission.  By  section  8 of  the  Act  of  September 

i22  Stat.  at  L.  p.  214. 

2Section  2. 

326  Stat.  at  L.  p.  1084. 

422  Stat.  at  L.  p.  58. 


Judicial  Review  of  Administrative  Decisions.  479 

13,  1888, 5 the  Secretary  of  the  Treasury  was  empowered  to 
make,  prescribe  and  amend  such  rules  and  regulations  as 
he  might  deem  necessary  to  secure  and  protect  both  the 
United  States  and  all  Chinese  persons  in  those  rights  se- 
cured to  them  by  the  second  and  third  articles  of  the  treaty 
with  China  of  1880.6  The  authority  and  power  with  re- 
spect to  the  enforcement  of  the  immigration  and  exclusion 
laws,  theretofore  vested  in  the  Secretary  of  the  Treasury, 
were  transferred  to  the  Secretary  of  Commerce  and  Labor 
by  the  Acts  of  February  14,  1903,  and  April  28,  1904. 

Section  8 of  the  Act  of  March  3,  1891,  provided  that  “all 
decisions  made  by  the  inspection  officers  or  their  assist- 
ants touching  the  right  of  any  alien  to  land  when  adverse 
to  such  right  shall  be  final  unless  appeal  be  taken  to  the 
Superintendent  of  Immigration  whose  action  shall  be 
subject  to  review  by  the  Secretary  of  the  Treasury.’’  Sec- 
tion 5 of  the  Act  of  March  3,  1893,  provided  that  every  ar- 
riving alien  immigrant  who  should  not  appear  to  the  ex- 
amining inspector  to  be  clearly  and  beyond  a doubt  enti- 
tled to  admission  should  be  detained  for  special  inquiry; 
that  no  immigrant  should  be  admitted  except  after  a 
favorable  decision  rendered  by  at  least  three  out  of  four 
inspectors  holding  the  inquiry;  and  that  any  decision  to 
admit  should  be  subject' to  appeal  by  any  dissenting  in- 
spector to  the  Superintendent  of  Immigration,  whose  ac- 
tion should  be  subject  to  review  by  the  Secretary  of  the 
Treasury. 

Section  12  of  the  Chinese  exclusion  Act  of  September  13, 
1888,  provided  that  no  Chinese  passenger  of  a vessel  enter- 
ing a port  of  the  United  States  should  be  allowed  to  land 
in  violation  of  law ; “and  that  the  collector  shall  in  person 
decide  all  questions  in  dispute  with  regard  to  the  right  of 
any  Chinese  passenger  to  enter  the  United  States,  and  his 
decision  shall  be  subject  to  review  by  the  Secretary  of  the 

525  Stat.  at  L.  p.  476. 

eAnte,  p.  26. 


480  ; The  Exclusion  and  Expulsion  of  Aliens. 

Treasury  and  not  otherwise.”  This  section  is,  however, 
to  be  regarded  as  not  binding  on  the  courts.7 

A.  Administrative  Officers  Final  Judges  on  Ques- 
tions of  Fact. 

These  provisions  make  it  clear  that  in  legislating  re- 
garding the  right  of  aliens,  Chinese  or  others,  to  enter  the 
United  States,  it  was  the  intention  of  Congress  to  submit 
all  questions  of  fact  on  which  the  right  to  enter  was  based 
to  the  final  determination  of  the  officers  who,  by  the  pro- 
visions of  the  various  statutes  dealing  with  the  subject, 
were  to  pass  upon  the  evidence  on  which  the  right  claimed 
w^as  founded.  The  matter  was  thereby  made  one  for  ad- 
ministrative and  not  judicial  decision. 

The  right  of  Congress  so  to  do  is  incontestable.  To  quote 
the  Supreme  Court  in  the  case  of  Ekiu  v.  United  States : 8 

“Congress  may  if  it  sees  fit authorize  the  courts  to 

investigate  and  ascertain  the  facts  on  which  the  right  to 
land  depends.  But  on  the  other  hand,  the  final  determina- 
tion of  those  facts  may  be  entrusted  by  Congress  to  execu- 
tive officers ; and  in  such  a case  as  in  all  others  in  which  a 
statute  gives  a discretionary  power  to  an  officer,  to  be 
exercised  by  him  upon  his  own  opinion  of  certain  facts, 
he  is  made  the  sole  and  exclusive  judge  of  the  existence  of 
those  facts,  and  no  other  tribunal,  unless  expressly  author- 
ized by  law  to  do  so,  is  at  liberty  to  re-examine  or  con- 
trovert the  sufficiency  of  the  evidence  on  which  he  acted.” 

It  had  been  contended  in  the  case  of  the  United  States 
v.  Jung  Ah  Lung9  that  there  was  no  jurisdiction  in  the 
United  States  District  Court  to  issue  a writ  of  habeas 
corpus  on  behalf  of  a Chinese  person  held  in  custody  by 
order  of  the  collector  of  customs  for  deportation  under  the 
Act  of  1884.  Said  the  court:  “It  is  urged  that  the  only 
restraint  of  the  party  was  that  he  was  not  permitted  to 

7Li  Sing  v.  United  States,  180  U.  S.  486,  45  Law  Ed.  634. 

8142  U.  S.  651;  35  Law  Ed.  1147. 

9124  U.  S.  621,  3 3 Law  Ed.  591. 


Judicial  Review  of  Administrative  Decisions.  481 

enter  the  United  States The  party  was  in  custody. 

The  return  of  the  master  was  that  he  held  him  in  custody 
by  direction  of  the  customs  authorities  of  the  port  under 
the  provisions  of  the  Chinese  restriction  act.  This  was 
an  act  of  Congress.  He  was,  therefore,  in  custody  under 
or  by  color  of  the  authority  of  the  United  States  within 

the  meaning  of  section  753  of  the  Revised  Statutes 

We  see  nothing  in  these  acts  which  in  any  manner  affects 
the  jurisdiction  of  the  courts  of  the  United  States  to  issue 
a writ  of  habeas  corpus”  And  the  decision  in  the  Ekiu 
case,10  although  holding  that  the  courts  could  not  be  ap- 
pealed to  for  passing  on  questions  of  fact,  when  the  same 
had  been  entrusted  by  Congress  to  administrative  officers, 
was  equally  firm  in  holding  that  “an  alien  immigrant  pre- 
vented from  landing  by  any  such  officer  claiming  authority 
to  do  so  under  an  act  of  Congress,  and  thereby  restrained 
of  his  liberty,  is  doubtless  entitled  to  a writ  of  habeas 
corpus  to  ascertain  whether  the  restraint  is  lawful.” 

To  say,  however,  that  on  habeas  corpus  proceedings  the 
court  cannot  inquire  into  the  facts  would  be  to  put  the 
proposition  too  broadly  to  be  consistent  with  accuracy. 
The  facts  on  which  the  court  will  not  pass  are  only  those 
facts  the  determination  of  which  Congress  has  left  with 
the  administrative  officers,  to  wit:  the  facts  on  which  the 
claim  of  the  alien  is  based.  Thus  it  has  been  held  that 
the  office  of  habeas  corpus , when  invoked  under  the  immi- 
gration or  Chinese  exclusion  acts  is  to  inquire  into  the  jur- 
isdiction exercised  by|  administrative  officers,  or  quasi 
judicial  tribunals,  such  as  those  presided  over  by  a United 
States  commissioner,  in  order  to  determine  whether  such 
officer  or  tribunal  has  kept  within  his  or  its  legal  limits 
and  proceeded  according  to  law.11 

The  question  of  whether  or  not  the  decision  of  depart- 
mental officers  is  final  and  binding  on  the  courts  originates 

ioEkiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146. 

uln  re  Vito  Rullo,  43  Fed.  62. 


482  The  Exclusion  and  Expulsion  of  Aliens. 


in  the  vast  majority  of  cases  with  an  administrative  hold- 
ing adverse  to  the  right  of  the  alien  to  enter  this  coun- 
try. The  immigration  and  exclusion  acts  do  not  provide 
that  a favorable  decision  on  the  part  of  such  officers  is 
final,  although  those  sections  of  the  exclusion  acts  provid- 
ing for  a hearing  before  the  United  States  commissioner 
where  Chinese  aliens  claim  to  be  entitled  to  remain  in 
the  United  States  have  been  construed  by  the  courts  to 
make  the  commissioner’s  favorable  finding  on  the  merits 
a final  settlement  of  the  question  in  dispute  and  as  giving 
the  Government  no  right  of  appeal  ;12  but  it  must  be  a de- 
cision on  the  merits,  or  it  is  not  final.13 

The  favorable  decisions  of  executive  officers,  on  the  con- 
trary, have  no  binding  effect  and  are  of  no  force  as  con- 
trolling adjudications.14  Thus  the  fact  that  the  board  of 
special  inquiry  established  under  the  present  immigration 
Act  of  February  20,  1907,  passes  favorably  on  the  right 
of  aliens  to  admission  does  not  exempt  them  from  the  op- 
eration of  the  three  year  probationary  period  during  which 
they  may  be  deported  by  the  Secretary  of  Commerce  and 
Labor  if  found  by  him  to  be  unlawfully  in  the  United 
States;15  and  consequently  the  Secretary  has  the  right  to 
order  the  board  to  institute  a second  hearing  in  such  cases, 
although  it  may  have  unanimously  decided  only  a month 
before  that  the  alien  is  entitled  to  enter.  Eecourse  to  the 
writ  in  connection  with  proceedings  instituted  before 
United  States  commissioners  under  the  Chinese  exclusion 
acts  will  be  considered  in  a subsequent  chapter.16 

i2Leong  Jun  v.  United  States,  171  Fed.  413. 

i3 Ex  parte  Leung  Jun,  160  Fed.  251. 

i *In  re  Li  Foon,  80  Fed.  881;  Ex  parte  Stancampiano,  161  Fed.  164;  Li 
Sing  v.  United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Pearson  v.  Williams, 
202  U.  S.  281,  50  Law  Ed.  1029. 

isPearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029;  and  see  136  Fed. 
734. 

i6Chapter  on  Deportation  Procedure,  post,  p.  652.  The  appeal  provided 
by  law,  and  not  an  application  for  the  writ  is  the  proper  remedy. 


Judicial  Review  of  Administrative  Decisions.  483 


II.  Prior  to  the  Act  of  August  18,  1894. 

A.  Right  of  Judicial  Review. 

Prior  to  the  passage  of  the  Act  of  August  18,  1894, 17 
the  courts  pursued  the  principle  of  non-interference  with 
the  decisions  rendered  by  the  proper  officials  as  to  the 
right  of  aliens  to  land  in  or  enter  the  United  States 
whenever  the  right  of  judicial  review  thus  invoked  would 
have  included  an  examination  of  the  facts  on  which  the 
right  of  the  petitioner  to  enter  or  land  was  based,  or  when 
it  would  have  included  a judicial  determination  of  facts 
to  ascertain  how  executive  officers  had  performed  the  duty 
imposed  on  them  by  the  acts.  Thus  the  courts  refused 
to  interfere  for  the  purpose  of  passing  on  the  action  of 
the  collector  of  customs  in  refusing  to  issue  the  return  cer- 
tificate provided  by  the  Acts  of  1882  and  1884  to  a Chinese 
laborer  leaving  the  United  States,  the  propriety  of  issuing 
such  certificates  having  been  left  entirely  to  the  discretion 
of  that  officer,18  and  steadily  refused  to  exercise  a super- 
visory control  over  the  manner  in  which  the  collector  per- 
formed his  duty.19  When  the  question  was  simply  whether 
or  not  the  finding  of  the  collector  was  correct,  and  even 
when  it  appeared  that  the  finding  as  to  the  facts  was  in- 
correct, when  such  incorrect  finding  was  based  on  the  un- 
truthful statements  of  the  petitioner,  the  courts  refused 
to  interfere.20  The  test  was  conceded  to  be  whether  or 
not,  in  denying  a landing,  the  proper  officers  were  acting 
within  the  jurisdiction  vested  in  them  by  the  law,21  and 
their  findings  were  held  not  subject  to  review  as  long  as 
competent  evidence  of  the  facts  on  which  it  was  their  duty 
to  pass  was  before  them  at  the  time  of  the  excluding  de- 

17 Post,  p.  489. 

18 In  re  Kew  Ock  (Case  of  the  Limited  Tag),  21  Fed.  789. 

19In  re  Ah  Kee,  21  Fed.  701. 

20 In  re  Dietz,  40  Fed.  324. 

21In  re  Day,  27  Fed.  678;  In  re  Cummings,  32  Fed.  75;  In  re  Vito  Rulio, 
43  Fed.  62;  In  re  Chin  Yuen  Sing,  65  Fed.  571. 


484  The  Exclusion  and  Expulsion  of  Aliens. 


cision.22  Thus,  where  the  collector  of  customs  under  the 
Act  of  August  3,  1882, 23  had  decided  that  the  petitioners 
were  not  public  charges,  thereby  reaching  a different  con- 
clusion from  that  of  the  board  of  commissioners,  the  writ 
was  dismissed  on  the  ground  that  the  former  had  no  power 
to  reverse  the  findings  of  the  board,  the  latter  being  vested 
by  law  with  jurisdiction  to  pass  upon  the  status  of  immi- 
grants to  the  exclusion  of  that  of  the  collector.24 

Nor  does  the  decision  of  the  Supreme  Court  in  the  Jung 
Ah  Lung  case25  lay  down  principles  in  conflict  with  the 
generally  accepted  view.  That  was  the  case  of  a Chinese 
laborer  who  left  the  United  States  in  1883  after  having 
procured  the  return  certificate  of  identification  required 
by  that  act.  The  collector  sought  to  exclude  him  on  the 
ground  that  he  had  neither  presented  the  certificate  issued 
under  that  act  nor  that  required  by  the  Act  of  1884,  passed 
in  his  absence,  and  that  no  other  evidence  of  his  right  to 
enter  was  admissible  under  the  provisions  of  the  Act  of 
1884.  The  court  held  that  the  Act  of  1884  had  no  appli- 
cation to  him  and  that  his  rights  were  to  be  determined 
by  the  provisions  of  the  Act  of  1882,  which  did  not  pro- 
vide that  the  certificate  should  be  the  only  evidence  of  the 
right  to  return.  It  was,  however,  urged  that  the  decision 
of  the  collector  was  exclusive,  but  the  court  said:  “It  is 
true  that  the  ninth  section  of  the  act  provides  that  before 

any  Chinese  passengers  are  landed the  collector 

shall  proceed  to  examine  the  passengers and 

that  no  passenger  shall  be  allowed  to  land  in  the  United 
States  from  such  vessel  in  violation  of  law.  But  we  regard 
this  as  only  a provision  for  specifying  the  executive  officer 
who  is  to  perform  the  duties  prescribed,  and  that  no 
inference  can  be  drawn  from  that  or  any  other  language 

22 In  re  Cummings,  32  Fed.  75;  In  re  Chin  Yuen  Sing,  65  Fed.  571. 

2322  Stat.  p.  214. 

24 in  re  Palagano,  38  Fed.  580. 

25124  U.  S.  621,  31  Law  Ed.  591. 


Judicial  Beview  of  Administrative  Decisions.  485 

in  the  acts  that  any  judicial  cognizance  which  would 
otherwise  exist  is  intended  to  be  interfered  with.” 

The  petition  went  in  effect  to  the  jurisdiction  of  the 
collector:  no  question  as  to  the  correctness  or  incorrect- 
ness of  his  findings  was  raised.  The  question  was  whether 
or  not  on  the  facts  shown  the  petitioner  was  entitled  as  a 
matter  of  law  to  land  under  the  acts.  The  jurisdiction  of 
the  collector  was  limited  to  cases  of  passengers  landing 
“from  such  a vessel  in  violation  of  law;”  and  when  the 
facts  as  found  by  the  collector  failed  to  show  that  the  peti- 
tioner if  landing,  would  be  doing  so  in  violation  of  the 
acts,  it  would  necessarily  follow  that  the  collector  would 
be  without  jurisdiction,  and  that  the  facts  on  which  such 
lack  of  jurisdiction  was  based  would  be  properly  before 
the  court  on  habeas  corpus.  But  the  writ  was  refused  in 
the  case  of  an  alien  immigrant  who  had  been  denied  land- 
ing by  an  inspector  of  immigration,  duly  appointed  under 
the  Act  of  March  3,  1891,  where  such  immigrant  had 
failed  to  appeal  from  the  excluding  decision  to  the  super- 
intendent of  immigration — the  opportunity  for  such  ap- 
peal being  duly  provided  by  section  8 of  that  act.26 

B.  Matters  Going  to  the  Jurisdiction  of  Executive 

Officers. 

Whether  or  not  the  executive  officers  are  acting 
within  the  limits  of  their  jurisdiction  depends  primarily 
on  two  things — first,  whether  or  not  the  person  excluded 
is  one  who  comes  within  the  operation  of  the  act  or  acts 
under  which  he  is  excluded,  and  second,  whether  or  not  the 
power  under  which  he  is  excluded  is  that  vested  in  the  ex- 
ecutive officers  for  the  purpose  of  enforcing  the  act. 

1.  Persons  Not  Within  the  Operation  of  the  Exclusion  or 
Immigration  Acts. 

It  was  held  in  earlier  cases  that  inasmuch  as  it  was 
not  the  intention  of  Congress  that  the  excluding  provi- 

26Ekiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1156. 


486  The  Exclusion  and  Expulsion  of  Aliens. 


sions  of  the  Chinese  exclusion  acts  should  apply  to  persons 
of  Chinese  descent  who  were  citizens  of  the  United  States, 
such  persons  when  held  for  the  purpose  of  deportation 
were  entitled  to  their  release  on  habeas  corpus;21  and  it 
appears  that  any  person  alleging  himself  to  be  a citizen 
of  the  United  States  desiring  to  return  to  this  country 
from  a foreign  land,  and  prevented  from  doing  so  by  deten- 
tion by  the  immigration  authorities,  who  applied  on  that 
ground  for  a writ  of  habeas  corpus  was  entitled  to  a hear- 
ing, and  to  a judicial  determination  of  the  facts  alleged; 
and  that  no  act  of  Congress  could  be  understood  to  bar 
such  hearing  and  judicial  determination.28 

So,  too,  with  regard  to  Chinese  persons  who,  though  not 
alleging  citizenship  in  the  United  States,  gave  proof  to  the 
customs  authorities  of  other  facts  the  existence  of  which 
was  not  deemed  a bar  to  their  exclusion  under  the  Chinese 
exclusion  acts;  or  with  regard  to  other  aliens  determined 
not  to  be  within  the  classes  excludable  under  the  immi- 
gration acts.  Thus  the  writ  was  granted  in  the  case  of  a 
Chinese  merchant  who  at  the  time  of  the  passage  of  the 
Act  of  1882  was  domiciled  in  Peru,  and  could  have  had  no 
opportunity  of  obtaining  a certificate  of  identity  under 
that  act,29  or  where  it  appeared  that  the  petitioner  was  a 
Chinese  laborer  domiciled  in  the  United  States  who  left 
the  country  prior  to  the  Act  of  1882  or  1884  and  could  not, 
therefore,  produce  the  required  certificate  on  his  return.30 
Similarly  where  it  was  proven  that  the  petitioner  had 
never  left  the  United  States,  but  had  traveled  from  one 
port  thereof  to  another  by  vessel,  as  in  such  case  no  cer- 
tificate of  return  was  required  by  the  act;31  and  finally 

27 Ex  parte  Chin  King,  35  Fed.  354;  In  re  Yung  Sing  Hee,  36  Fed.  437. 

28Gee  Fook  Sing  v.  United  States,  49  Fed.  146.  Decisions  under  the 
later  acts  show  them  to  have  been  based  on  a fallacy,  at  least  so  far  as 
they  sought  to  make  of  citizenship  a peculiarly  high  question  of  fact. 

29Case  of  the  Chinese  merchant,  13  Fed.  605. 

30 in  re  Chin  A On,  18  Fed.  506;  United  States  v.  Jung  Ah  Lung,  124  U 
S.  621. 

si  In  re  Tong  Wah  Sick,  36  Fed.  440, 


Judicial  Review  of  Administrative  Decisions.  487 

release  on  the  writ  was  held  to  be  the  proper  course  where 
it  appeared  that  the  petitioners  were  alien  residents  of  the 
United  States  returning  to  this  country  from  a trip 
abroad,  and  were  held  for  deportation  on  the  ground 
of  being  alien  immigrants  under  the  Act  of  1885,  as  the  act 
was  consistently  held  to  apply  only  to  aliens  coming  to 
this  country  for  the  first  time  to  establish  their  domicile 
here,  and  not  to  aliens  who,  having  established  that  domi- 
cile left  it  temporarily  animo  revertendif2  but  the  de- 
cision of  the  Secretary  of  the  Treasury  to  the  effect  that 
the  petitioner  was  an  immigrant  presented  a finding  of 
fact  with  which  the  courts  refused  to  interfere.33  Relief 
was  held  proper  where  the  petitioner  was  a Chinese 
merchant  domiciled  in  the  United  States  for  seven- 
teen years,  who  left  after  obtaining  proofs  of  identity 
from  the  collector  of  the  port,  and  was  held  for  deporta- 
tion on  his  return  from  a business  trip  to  China  for  failure 
to  obtain  the  certificate  of  identity  from  the  Chinese  gov- 
ernment required  from  Chinese  merchants  coming  to 
the  United  States  for  the  first  time;  those  acts  containing 
no  provision  whatsoever  rendering  it  obligatory  on  such 
persons  to  obtain  certificates  when  returning  to  the  United 
States.34  Again,  it  was  held  that  a Chinese  girl,  the  bride 
of  a Chinese  person  then  in  the  United  States,  refused 
admission  and  held  for  deportation,  properly  seeks  relief 
in  habeas  corpus  when  it  appears  that  the  marriage  was 
solemnized  in  good  faith,  although  the  groom  was  in  the 
United  States  at  the  time  the  ceremony  was  performed  in 
China;  as  the  treaty  with  China  and  the  provisions  of  the 
exclusion  acts  were  held  not  to  exclude  from  admission  to 
the  United  States  the  wives  or  children  of  Chinese  per- 
sons belonging  to  the  exempt  classes  designated  therein.35 
And  where  a Chinese  person  was  held  for  deportation  on 

32 In  re  Panzara,  51  Fed.  275;  In  re  Bucciarello  et  al.,  45  Fed.  463. 

33 In  re  Howard,  63  Fed.  263. 

3*Lau  Ow  Bew  v.  United  States,  144  U.  S.  47. 

35 In  re  Lim  Lim  Ying,  59  Fed,  682. 


488  The  Exclusion  and  Expulsion  of  Aliens. 

the  ground  that  he  was  a Chinese  laborer  who  had  failed 
to  register  according  to  the  Act  of  1893,  he  was  discharged 
on  habeas  corpus  proceedings  on  the  ground  that  the  evi- 
dence produced  by  him  in  deportation  proceedings  was 
sufficient  to  establish  his  status  as  a merchant,  and  that 
as  such  he  was  not  subject  to  deportation  under  that  act 
for  failure  to  register.36  The  reason  for  granting  the 
relief  in  habeas  corpus  in  the  class  of  cases  last  cited  is 
clear:  The  fact  of  detention  under  color  of  authority  of 
the  United  States  for  purposes  of  deportation  under  the 
Chinese  exclusion  and  immigration  acts  of  aliens  who  it 
was  not  the  purpose  of  Congress  to  exclude,  and  the  conse- 
quent lack  of  jurisdiction  in  the  departmental  officers  to 
exclude  or  expel. 

2.  Acts  in  Excess  of  Executive  Authority. 

The  second  general  ground  for  affording  relief  as 
stated37  is  where  the  facts  which  the  courts  are  requested 
to  review  show  that  executive  officers  have  exceeded  the 
powers  vested  in  them  by  statute  through  adopting  meth- 
ods of  exclusion  not  provided  by  or  justifiable  under  the 
acts  themselves.  Thus,  on  a writ  of  habeas  corpus  brought 
by  an  immigrant  held  for  deportation  under  the  Act  of 
August  3,  1882,  the  court,  after  inquiring  into  the  cause  of 
detention,  found  it  proper  to  ascertain  whether  or  not  the 
board  of  inquiry  acted  within  its  powers;  and  release  on 
the  writ  was  held  proper  where,  under  the  same  act,  the 
petitioners  were  held  for  deportation  in  the  absence  of 
any  examination  by  the  board;38  and  the  power  of  the 
courts  to  review  was  held  to  be  limited  to  an  examination 
as  to  whether  or  not  the  proceedings  of  the  immigration 
authorities  were  fair  and  regular.39  And  similarly  under 

*6The  proper  procedure  in  cases  coming  before  United  States  Commis- 
sioners under  that  Act  is  by  appeal,  and  not  by  writ  of  habeas  corpus. 

wAnte,  p.  485. 

as  in  re  Bracmadfar,  37  Fed.  774. 

39 In  re  Dietz,  40  Fed.  324. 


Judicial  Review  of  Administrative  Decisions.  489 

the  Act  of  March  3,  1891,  where  it  appeared  that  the  pe- 
titioner had  been  refused  the  privilege  of  the  special  in- 
quiry provided  under  section  1 of  that  act,  and  was  there- 
upon detained  for  deportation,  the  court  ordered  his  re- 
lease on  habeas  corpus.*0 

III.  After  the  Passage  of  the  Act  of  August  18,  1894. 

A.  Right  of  Judicial  Review. 

On  August  18,  1894,  Congress  passed  the  Sundry  Civil 
Appropriation  Act  appropriating  $100,000  under  the  sub- 
title “Enforcement  of  alien  laws/’  and  $50,000  under  the 
subtitle  “Enforcement  of  the  Chinese  exclusion  act,”  imme- 
diately following  the  former.  The  closing  paragraph  of  the 
latter  reads  as  follows:  “In  every  case  where  an  alien  is 
excluded  from  admission  into  the  United  States  under  any 
law  or  treaty  now  existing  or  hereafter  made,  the  decision 
of  the  appropriate  immigration  or  customs  officers,  if  ad- 
verse to  the  admission  of  such  alien  shall  be  final  unless 
reversed  on  appeal  to  the  Secretary  of  the  Treasury.” 
By  the  Acts  of  February  14,  1903,  and  April  28,  1904,  the 
jurisdiction  of  the  Treasury  Department  in  these  matters 
was  transferred  to  the  Department  of  Commerce  and 
Labor. 

At  the  time  of  the  passage  of  this  act  the  Chinese  ex- 
clusion Acts  of  1882  and  1884,  and  October  1,  1888,  were 
in  force.  As  regards  the  Act  of  September  13,  1888, 
“while  sections  1 to  4 and  section  15  never  took  effect  be- 
cause the  treaty  upon  which  they  were  dependent  was  not 
ratified,  the  remainder  of  the  act  was  not  dependent  011 
the  treaty,  and  has  a field  of  operation  as  existing  law.”  41 
And  it  was  held  in  1892  that  the  act  became  law  from  the 
date  of  its  approval  with  the  exception  of  sections  2,  4, 
and  15,  but  that  while  the  law  existed  at  that  time,  in  the 

*°In  re  Feinknopf,  47  Fed.  447. 

4123  Opinions  Atty.  Genl.  621,  1902. 

42United  States  v.  Long  Hop,  55  Fed.  58, 


490  The  Exclusion  and  Expulsion  of  Aliens. 

absence  of  the  ratification  of  the  treaty  there  was  no  field 
of  operation  for  those  sections.42  Even  in  1901  the  matter 
of  the  force  of  those  provisions  which  were  not  dependent 
on  the  treaty  involved  considerable  doubt.  Says  the  Su- 
preme Court  in  the  case  of  Li  Sing  v.  United  States : 43 
“Without  finding  it  necessary  to  say  that  there  are  no  pro- 
visions in  the  Act  of  September  13,  1888,  which  from  their 
nature  are  binding  on  the  courts  as  existing  statements 
of  the  legislative  will,  we  are  willing  to  hold  that  section 
12  of  that  act  cannot  be  so  regarded.”  44 

Moreover,  at  the  time  of  the  passage  of  the  Sundry 
Civil  Appropriation  Act  of  August  18,  1894,  the  Acts  of 
March  3,  1891,  and  March  3,  1893,  amending  and  facilitat- 
ing the  enforcement  of  the  various  acts  relating  to  the 
immigration  and  importation  of  aliens,  were  in  full  force 
and  effect. 

Prior  to  the  Act  of  August  18,  1894,  in  one  instance  only 
had  Congress  provided  that  the  decision  of  executive  offi- 
cers should  be  final  as  to  the  right  of  aliens  to  be  admitted 
to  the  United  States.  This  was  section  8 of  the  Act  of 
March  3,  1891,  to  the  effect  that  all  decisions  of  inspection 
officers  touching  that  right  should  be  final  “unless  appeal 
be  taken  to  the  Superintendent  of  Immigration,  whose 
action  shall  be  subject  to  review  by  the  Secretary  of  the 
Treasury.”  There  it  was  the  failure  on  the  part  of  the 
alien  to  take  the  appeal  that  made  the  decision  final, 
True,  section  12,  of  the  Act  of  September  13,  1888,  pro- 
vided that  the  collector  in  person  should  decide  all  ques- 
tions in  dispute  as  to  the  right  of  Chinese  persons  to  land, 
and  that  his  decision  should  be  subject  to  review  by  the 
Secretary  of  the  Treasury  but  not  otherwise.  But,  as 
above  stated,45  section  12  was  held  by  the  Supreme  Court 
not  to  be  binding  on  the  courts.  The  Act  of  1894  com- 

43180  U.  S.  486,  45  Law  Ed.  634. 

44Section  5 to  14  excepting  Section  12  were,  in  order  to  dispel  any  further 
doubts  on  the  question,  re-enacted  by  the  Acts  of  1902,  and  1904. 

45  Supra. 


Judicial  Review  of  Administrative  Decisions.  491 

mitted  the  decision  of  the  right  of  entry  to  officers  of  the 
executive  department  for  final  determination,46  and  in 
spite  of  determined  attacks  made  upon  it  in  the  courts, 
its  constitutionality  was  upheld  on  the  ground  that  Con- 
gress could  entrust  the  executive  department  with  the  ex- 
clusion determination  of  the  right  of  aliens  to  enter  the 
United  States;  that  it  had  expressed  its  will  in  this  in- 
stance, and  had  made  the  decision  of  the  Secretary  of  the 
Treasury  the  final  expression  of  the  governmental  intent 
in  these  cases.47 

Administrative  Decisions  May  Not  Be  Arbitrary. 

Still,  in  spite  of  the  positive  and  comprehensive  terms 
of  the  statute  they  cannot  be  construed  to  vest  executive 
officers  with  arbitrary  power.  There  is  the  law  itself, 
which  defines  the  method  in  which  the  right  to  enter  is  to 
be  determined.  If  determined  in  accordance  with  the 
method  prescribed  by  Congress,  harsh  as  those  methods 
may  be,  the  existence  of  the  right  has  none  the  less  been 
decided  lawfully,  and  the  alien  excluded  cannot  be  heard 
to  say  that  he  has  been  excluded  without  due  process  of 
law;  but  to  constitute  due  process  of  law  as  understood 
at  the  time  of  the  Constitution  he  cannot  be  detained  for 
deportation  without  having  had,  at  some  time  an  oppor- 
tunity to  be  heard  upon  his  right  to  enter;48  also  he  must, 
in  order  that  the  executive  decision  be  final,  be  an  alien 
seeking  admission  to  the  United  States  under  some  law 
or  treaty  of  the  United  States;  otherwise  he  is  not  within 

46Lem  Moon  Sing  v.  United  States,  158  U.  S.  539,  39  Law  Ed.  1082. 

47Lem  Moon  Sing  v.  United  States,  158  U.  S.  539;  39  Law  Ed.  1082; 
United  States  v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917;  United  States 
v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  Yamataya  v.  Fisher,  189  U.  S. 
86,  47  Law  Ed.  721;  Lee  Lung  v.  Patterson,  186  U.  S.  168,  46  Law  Ed. 
1108;  United  States  v.  Watchorn,  164  Fed.  152;  ex  parte  Stancampiano, 
161  Fed.  164;  In  re  Gayde,  113  Fed.  588,  and  same  112  Fed.  416;  In  re 
Way  Tai,  96  Fed.  484;  United  States  v.  Jin  Fung,  100  Fed.  389;  In  re 
Moses,  83  Fed.  995;  United  States  v.  Wong  Chow,  108  Fed.  376;  In  re 
Leong  Youk  Tong,  90  Fed.  648. 

48Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 


492  The  Exclusion  and  Expulsion  of  Aliens. 

the  purview  of  the  statute,  and  the  excluding  decision,  far 
from  being  final,  would  be  null  and  void,  inasmuch  as  it 
is  only  under  some  law  or  treaty  that  the  Secretary  has 
jurisdiction  to  pass  upon  his  case.  How  far  the  right  of 
an  alien  to  a hearing  in  habeas  corpus  proceedings  has 
been  restricted  by  the  Act  of  1894,  and  to  what  extent  the 
court  will,  in  view  of  this  legislation,  review  the  decisions 
of  the  executive  department,  will  be  considered  in  the  fol- 
lowing pages. 

Effect  of  the  Act  of  189 If  on  the  Right  of  Judicial  Review. 

The  question  of  jurisdiction  and  of  whether  or  not,  in 
passing  on  any  given  case,  the  methods  designated  and  in- 
tended by  Congress  to  be  pursued  are  in  fact  employed 
to-day,  is,  as  it  was  before  the  passage  of  the  Act  of 
1894,  the  only  real  issue  which  justifies  the  courts  in  re- 
viewing administrative  decisions  rendered  under  the 
Chinese  exclusion  and  immigration  acts.  How,  then,  it 
may  be  asked,  does  the  passage  of  that  act  either  restrict 
the  courts  in  their  power  of  review  or  make  the  decisions 
of  administrative  officers  more  binding  on  the  judiciary 
than  they  were  prior  to  the  passage  of  the  act?  The  dis- 
tinction may  be  said  to  be  this : 

Before  the  Act  of  1894  was  passed  whenever  the  courts 
refused  to  exercise  the  right  of  review  it  was  merely  on 
the  broad  ground  that  all  discretion  having  been  granted 
to  executive  officers  by  the  provisions  of  the  preceding 
acts  to  pass  on  the  facts  on  which  the  right  to  enter  was 
based,  Congress  had  shown  that  it  was  its  intention  that 
as  to  those  facts  the  decision  of  the  executive  officers 
should  be  final ; but  that,  if  the  claim  was  made  that,  over 
and  above  the  officer’s  finding  of  fact,  the  applicant  was 
entitled  to  enter  under  any  law  or  treaty,  the  courts  would 
pass  on  whether  or  not  he  was  entitled  to  enter  under  such 
law  or  treaty.  The  decision  of  those  officers  as  to  the  right 
of  foreigners  to  enter  under  any  law  or  treaty  not  being 
made  final  by  any  Congressional  legislation  to  that  effect, 


Judicial  Review  of  Administrative  Decisions.  493 

there  could  be  no  obstacle  to  its  review  by  the  courts  on 
habeas  corpus  proceedings.49 

But  after  the  passage  of  the  Act  of  1894.,  a different  con- 
dition was  created.  Under  the  earlier  acts  the  facts  as 
found  by  the  officer  were  not  subject  to  review  because  of 
a generally  recognized  legal  principle  applicable  to  the 
existence  in  such  officer  of  a delegated  authority  to  pass 
on  those  facts ; but  where  it  was  contended  that  an  alien 
was  deprived  of  treaty  rights  by  being  excluded,  the  courts 
would  exercise  their  power  of  examining  into  that  par- 
ticular question.  This  power  the  Act  of  1894  took  away. 
As  said  in  the  Lem  Moon  Sing  case,50  where  the  writ  of 
habeas  corpus  was  refused  a Chinese  person  who,  in  spite 
of  his  assertion  that  he  was  a returning  Chinese  merchant 
lawfully  domiciled  in  the  United  States,  had  been  refused 
admission  to  the  United  States:  “The  contention  is  that 
while,  generally  speaking,  immigration  officers  have  juris- 
diction under  the  statute  to  exclude  an  alien  who  is  not 
entitled  under  some  statute  or  treaty  to  come  to  the 
United  States;  yet  if  the  alien  is  entitled,  of  right,  by 
some  law  or  treaty,  to  enter  this  country,  but  is  neverthe- 
less excluded  by  such  officers,  the  latter  exceed  their  juris- 
diction ; and  their  illegal  action,  if  it  results  in  restraining 
the  alien  of  his  liberty,  presents  a judicial  question  for 
the  decision  of  which  the  courts  may  intervene  upon  a 
writ  of  habeas  corpus  ” The  court  goes  on  to  say  that  if 
this  contention  is  correct  the  provision  that  the  adminis- 
trative decision  should  be  final  would  be  nullified  and  of 
no  practical  effect.  The  question  of  whether  or  not  an 
alien  was  entitled  to  enter  under  some  law  or  treaty  on 
which  the  Supreme  Court  had,  prior  to  August  18,  1894,  so 
frequently  passed,  was  no  longer  open  to  judicial  consid- 

*9Ekiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146;  Lau  Ow  Bew, 
petitioner,  141  U.  S.  583,  35  Law  Ed.  868;  Wan  Shing  v.  United  States, 
140  U.  S.  424,  35  Law  Ed.  503;  United  States  v.  Jung  Ah  Lung,  124  U.  S. 
621,  31  Law  Ed.  591;  Chew  Heong  v.  United  States,  112  U.  S.  536,  28  Law 
Ed.  770. 

soLem  Moon  Sing  v.  United  States,  158  U.  S.  539,  39  Law  Ed.  1082. 


494  The  Exclusion  and  Expulsion  of  Aliens. 

eration.  As  stated  in  this  case,  the  effect  of  the  Act  of 
1894  was  to  commit  to  executive  officers  “exclusive 
authority  to  determine  whether  a particular  alien  seeking 
admission  into  this  country  belongs  to  the  class  entitled 
by  some  law  or  treaty  to  come  into  the  country  or  to  a 
class  forbidden  to  enter  the  United  States.”  In  distin- 
guishing between  this  case  and  that  of  Lau  Ow  Bew  v. 
United  States51  the  Court  said : 

“Now  the  difference  between  that  case  and  the  present 
one  is  that,  by  the  statutes  in  force  when  the  former  was 
decided  the  action  of  executive  officers  charged  with  the 
duty  of  enforcing  the  Chinese  Exclusion  Act  of  1882  as 
amended  in  1884,  could  be  reached  and  controlled  by  the 
Courts  when  necessary  for  the  protection  of  rights  given 
or  secured  by  some  statute  or  treaty  relating  to  Chinese. 
But  by  the  Act  of  1894,  the  decision  of  the  appropriate  im- 
migration or  customs  officers  excluding  an  alien  ‘from  ad- 
mission to  the  United  States  under  any  law  or  treaty’  is 
made  final  in  every  case,  unless,  on  appeal  to  the  Secretary 

of  the  Treasury  it  be  reversed, If  the  Act  of  1894 

had  done  nothing  more  than  appropriate  money  to  enforce 
the  Chinese  Exclusion  act,  the  Courts  would  have  been 
authorized  to  protect  any  right  the  appellant  had  to  enter 
the  country,  if  he  was  of  the  class  entitled  to  admission 
under  existing  laws  or  treaties  and  was  improperly  ex- 
cluded. But  when  Congress  went  further (by 

passing  the  Act  of  1894) the  authority  of  the  Courts 

to  review  the  decision  of  the  executive  officers  was  taken 
away.”52  Where  it  appears  that  the  person  excluded  is  an 
alien,  that  he  was  seeking  admission  under  and  was  ex- 
cluded under  a law  or  treaty  of  the  United  States,  and  that 
the  excluding  decision  is  not  reversed  on  appeal,  these 
facts  taken  together,  would  seem  to  constitute  those  ele- 
ments creating  a condition  into  which  the  Courts  cannot 
intrude.  Conversely  it  seems  that  the  absence  of  any  one 

siLau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340. 

62158  U.  S.  539,  39  Law  Ed.  1082. 


Judicial  Review  of  Administrative  Decisions.  495 

cf  these  elements  would  deprive  an  administrative  decision 
rendered  under  those  conditions  of  the  shield  of  finality 
thrown  about  it  by  the  statute. 

It  is  not  to  be  considered,  however,  that  Congress  has 
provided  that  the  decisions  of  executive  officers  only  need 
to  be  rendered  in  order  to  be  final.  The  decision  of  the 
Supreme  Court  in  the  Japanese  Immigrant  case53  which 
went  as  far  as  any  other  rendered  by  that  tribunal  in 
upholding  the  constitutionality  of  the  Act  of  1894  and  in 
adhering  to  the  strict  principles  of  non-interference  by  the 
Courts  with  decisions  rendered  by  administrative  officers 
entrusted  with  the  execution  of  the  Chinese  and  Immi- 
gration Acts,  contains  the  following  statement : 

“But  this  Court  has  never  held,  nor  must  we  now  be 
understood  as  holding,  that  administrative  officers,  when 
executing  the  provisions  of  a statute  involving  the  liberty 
of  persons  may  disregard  the  fundamental  principles  that 
inhere  in  “due  process  of  law”  as  understood  at  the  time 
of  the  adoption  of  the  Constitution.  One  of  these  princi- 
ples is  that  no  person  shall  be  deprived  of  his  liberty  with- 
out opportunity,  at  some  time,  to  be  heard . . . Therefore,  it 
is  not  competent  for  the  Secretary  of  the  Treasury  or  any 
executive  officer  at  any  time  within  the  year  limited  by  the 
statute  arbitrarily  to  cause  an  alien  who  has  entered  the 
country  and  has  been  subject  in  all  respects  to  its  jurisdic- 
tion, and  a part  of  its  population,  although  alleged  to  be 
illegally  here,  to  be  taken  into  custody  and  deported  with- 
out giving  him  all  opportunity  to  be  heard  upon  the  ques- 
tions involving  his  right  to  be  and  remain  in  the  United 
States.  No  such  arbitrary  power  can  exist  where  the 
principles  involved  in  due  process  of  law  are  recognized.” 

B.  Matters  going  to  the  Jurisdiction  of  Executive 

Officers. 

As  before  stated54  the  jurisdiction  of  departmental  of- 

ssYamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 

54 Ante,  p.  491. 


496  The  Exclusion  and  Expulsion  of  Aliens. 

ficers  is  complete  under  the  Act  of  August  18,  1894,  when 
the  person  before  them  is  an  alien  and  attempting  to  enter 
under  any  law  or  treaty  of  the  United  States.  As  will  be 
seen,55  when  the  question  of  whether  or  not  he  is  an  alien 
or  a citizen  depends  absolutely  on  the  facts  found  by  the 
executive  officer,  the  latter’s  decision  is  final  as  to  such 
alienage  or  citizenship.  Such  decision  is  not  final  how- 
ever, if  the  person  found  to  be  an  alien  is  not  found  to  be 
seeking  admission  to  the  United  States  under  any  law  or 
treaty;  in  other  words  if  the  law  or  treaty  under  which 
the  power  to  exclude  is  exercised  does  not  include  within 
its  operation  the  alien  excluded  in  a particular  case. 
Whether  a person  seeking  admission  into  this  country  is 
a citizen  or  a foreigner  is  a question  of  fact56  for  adminis- 
trative officers  to  determine  insofar  as  the  applicant’s  po- 
litical status  can  be  correctly  determined  by  reference  to 
facts  alone;  whether  if  found  to  be  an  alien  he  is  as  such, 
subject  to  the  operation  of  a law  or  treaty  regarding  his 
right  to  admission,  is  a question  of  law.67  But  it  must 
always  be  borne  in  mind  that  while  the  facts  from  which 
executive  officers  may  deduce  the  resulting  political  status 
of  alienage  or  citizenship  cannot  be  disturbed  by  the 
Courts  they  may  pass  upon  the  point  as  to  whether  or  not 
the  deduction  of  law  based  on  such  fact  is  correct.58 

1.  Mere  Allegation  of  Citizenship  Insufficient  to  give 
Courts  Jurisdiction. 

Before  passing  to  an  examination  of  what,  in  the  light 
of  judicial  determination,  is  a test  of  a fair  hearing,  or  of 
the  circumstances  under  which  the  Courts  will  review  ad- 
ministrative decisions,  it  will  be  well  to  consider  how  the 
Courts  have  interpreted  the  Act  of  1894  with  particular 
regard  to  its  application  to  cases  where  the  alien  seeking 

ssPost,  p.  534. 

66Lem  Moon  Sing  v.  United  States,  158  U.  S.  534,  39  Law  Ed.  1082. 

57Gonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 

BsUnited  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  42  Law  Ed.  890. 


Judicial  Review  of  Administrative  Decisions.  497 

to  enter  the  United  States  has  sought  to  avoid  its  opera- 
tion by  the  claim  that  he  is  an  American  citizen.  Atten- 
tion has  already  been  called  to  the  fact  that  the  mere 
allegation  of  United  States  citizenship  on  the  part  of  a 
person  excluded  from  admission  to  this  country  and  de- 
tained for  deportation  was  sufficient  to  grant  him  a hear- 
ing in  habeas  corpus.59  The  question  was  first  presented 
to  the  Supreme  Court  in  the  case  of  Chin  Bak  Kan  v. 
United  States,60  decided  in  1902.  The  petitioner  was  a 
person  of  Chinese  descent  arrested  on  the  ground  of  being 
unlawfully  in  the  United  States,  and  brought  before  a 
United  States  commissioner  in  deportation  proceedings. 
It  was  claimed  that  the  Commissioner  had  no  jurisdiction 
because  the  basis  of  the  right  to  remain  was  alleged  to  be 
the  United  States  citizenship  of  the  party  arrested,  and 
that  by  law  the  Obligation  to  prove  the  right  to  remain 
before  the  commissioner  rested  in  Chinese  persons  only.” 
But  the  Court  held  that  the  right  on  which  such  a claim 
is  rested  must  be  made  to  appear,  and  that  “the  inesti- 
mable heritage  of  citizenship  is  not  to  be  conceded  to  those 
who  seek  to  avail  themselves  of  it  under  a pressure  of  a 
particular  exigency  without  being  able  to  show  that  it 
was  ever  possessed.”  Further,  the  Court  laid  particular 
stress  on  the  fact  that  the  United  States  Commissioner 
was  a quasi- judicial  officer  and  that  he  acts  judicially  in 
such  proceedings.  It  is  also  to  be  noted  that  under  the 
procedure  prescribed  the  law  gives  the  right  to  appeal,  the 
effect  of  which  is  to  create  a hearing  de  novo  before  the 
Court  reviewing  the  proceedings  held  before  the  Commis- 
sioner, and  full  opportunity  to  prove  the  fact  of  citizen- 
ship before  a court  of  the  United  States.  The  application 
for  the  writ  was  denied. 

59Gee  Fook  Sing  v.  United  States,  49  Fed.  146. 

60186  U.  S.  193,  46  Law  Ed.  1121. 


498  The  Exclusion  and  Expulsion  of  Aliens. 

(A.)  When  the  writ  is  Applied  for  before  Administrative 
Appeal  is  taken. 

In  deciding  the  case  of  the  United  States  v.  Sing  Tuck61 
the  Supreme  Court  had  before  it  the  question  as  to  whether 
or  not  Chinese  persons  seeking  admission  into  the  United 
States,  who,  on  being  interrogated  as  to  their  right  to 
enter,  stated  that  they  were  American  citizens  and  then 
stood  mute,  and  were  then  found  not  entitled  to  enter, — 
from  which  finding  they  took  no  appeal  from  the  inspector 
in  charge  at  the  port  of  application — were  entitled,  on 
being  detained  for  deportation,  to  their  discharge  on  a writ 
of  habeas  corpus.  It  was  argued,  that,  by  the  construction 
of  the  Act  of  1894  the  fact  of  citizenship  went  to  the  juris- 
diction of  the  immigration  officers,  and  that  the  statute 
did  not  purport  to  apply  to  one  who  was  a citizen  in  fact. 
But  the  Court  said,  “We  shall  not  argue  the  meaning  of 
the  act.  That  must  be  taken  to  be  established.  As  to 
whether  or  not  the  act  could  make  the  decision  of  an  ex- 
ecutive officer  final  upon  the  fact  of  citizenship,  we  leave 
the  question  where  we  find  it.  Whatever  may  be  the 
law  on  that  point  the  decisions  just  cited  are  enough  to 
show  that  it  is  too  late  to  contend  that  the  act  is  void  as  a 

whole In  order  to  act  at  all  the  executive  officer 

must  decide  on  the  question  of  citizenship.  If  his  jurisdic- 
ton  is  subject  to  being  upset  still  it  is  necessary  that  he 
proceed  if  he  decides  that  it  exists.  An  appeal  is 
provided  by  the  statute.  The  first  mode  of  attacking  his 
decision  is  taking  that  appeal.  If  the  appeal  fails  it  is 
then  time  enough  to  consider  whether  upon  a petition 
showing  reasonable  cause,  there  ought  to  be  a further  trial 
upon  habeas  corpus.”62 

eil94  U.  S.  161,  48  Law  Ed.  917. 

62And  see  re  Koon  Ko  and  re  Koon  Heen,  3 U.  S.  Dct.  Hawaii,  p.  623; 
and  see  Jao  Igco  v.  Shuster,  10  Phil.  Rep.  448;  Lun  Jao  Lu  v.  McCoy,  10 
Phil.  Rep.  641. 


Judicial  Review  of  Administrative  Decisions.  499 


(B.)  Where  the  writ  is  Applied  for  after  Administrative 
Appeal  is  taken. 

In  the  case  of  United  States  v.  Ju  Toy,63  the  question 
was  squarely  raised  of  whether  or  not  the  allegation  of 
American  citizenship  on  the  part  of  Chinese  persons  re- 
fused admission  to  the  United  States  by  the  Immigration 
authorities  and  again  denied  the  right  to  enter  on  appeal 
to  the  Secretary  of  Commerce  and  Labor  sufficed  to  take 
the  case  from  the  hands  of  departmental  officers  and  into 
the  jurisdiction  of  the  courts  on  habeas  corpus.  The  case 
of  the  petitioner  appeared  to  be  peculiarly  strengthened  by 
the  fact  that  a United  States  District  Court  had  granted 
the  writ,  and  on  hearing  the  evidence  adduced  the  judge 
found  the  petitioner  to  be  a native  born  citizen  of  the 
United  States.  He  alleged  only  the  fact  of  citizenship, 
and  the  petition  was  silent  as  to  the  existence  of  any  abuse 
of  authority  on  the  part  of  the  executive  officers  or  the 
absence  of  a fair  hearing.  In  denying  the  writ  the  Court 
said : “It  is  established,  as  we  have  said,  that  the  Act  of 
1894  purports  to  make  the  decision  of  the  Department  final, 
whatever  the  ground  on  which  the  right  to  enter  the  coun- 
try is  claimed, — as  well  when  it  is  citizenship  as  when  it  is 
domicile,  and  the  belonging  to  a class  excepted  from  the 
Exclusion  Acts.  It  is  also  established  by  the  former  case 
(United  States  v.  Sing  Tuck)  and  others  which  it  cites 
that  the  relevant  portion  of  the  Act  of  August  18,  1894, 
Chapter  301,  is  not  void  as  a whole.  The  statute  has  been 
upheld  and  enforced.  But  the  relevant  portion  being  a 
single  section,  accomplishing  all  its  results  by  the  same 
general  words  must  be  valid  as  to  all  that  it  embraces,  or 
altogether  void.  An  exception  of  a class  constitutionally 
exempted  cannot  be  read  into  those  general  words  merely 
for  the  purpose  of  saving  what  remains.  That  has  been 
decided  over  and  over  again  (citing  cases).  It  necessarily 

63198  U.  S.  253,  49  Law  Ed.  1040. 


500  The  Exclusion  and  Expulsion  of  Aliens. 

follows  that  when  such  words  are  sustained  they  are  sus- 
tained to  their  full  extent.” 

Certain  observations  made  by  the  Court  both  in  the  Sing 
Tuck  and  Ju  Toy  cases  have  served  perhaps  to  create  an 
erroneous  impression  as  to  that  court’s  attitude  concern- 
ing the  right  of  immigration  officers  to  arrest  and  detain 
citizens  of  the  United  States  seeking  to  enter  this  country. 
In  the  former  case  it  is  said  that  “the  detention 
during  the  time  necessary  for  investigation  was  not  un- 
lawful even  if  all  the  parties  were  not  attempting  to 
upset  the  inspection  machinery  by  a transparent  device;” 
and  in  the  J u Toy  case : “if  for  the  purpose  of  argument 
we  assume  that  the  Fifth  Amendment  applies  to  him  (the 
petitioner)  and  that  to  deny  entrance  to  a citizen  is  to  de- 
prive him  of  liberty,  we  nevertheless  are  of  the  opinion 
that  in  regard  to  him,  due  process  of  law  does  not  require 
a judicial  trial.”  But  these  remarks,  aside  from"  being 
purely  dicta,  cannot  be  held  as  laying  down  the  proposi- 
tion that  under  the  Chinese  and  Immigration  Acts  taken 
in  connection  with  the  Act  of  1894,  the  decisions  of  execu- 
tive officers  denying  admission  to  citizens  of  the  United 
States  are  final  and  binding  on  the  courts.  What  the  Su- 
preme Court  does  hold  unqualifiedly  is  that  the  mere  as- 
sertion of  citizenship  by  persons  excluded  under  any  law 
or  treaty  of  the  United  States  is  insufficient  on  which  to 
base  the  claim  for  a judicial  hearing  to  which,  as  Ameri- 
can citizens,  they  would  be  entitled ; and  this  holding  cer- 
tainly finds  support  in  the  decision  rendered  in  the  Chin 
Bak  Kan  case64  inasmuch  as  the  relief  sought  in  that  case 
in  habeas  corpus  was  refused  on  the  ground  that  petitioner 
had  failed  to  prove  himself  what  he  had  asserted  himself 
to  be,  a citizen  of  the  United  States.  It  seems  indisput- 
able, as  stated  in  the  dissenting  opinion  in  both  the  Sing 
Tuck  and  Ju  Toy  cases,  that  not  only  do  the  statutes  of  the 
United  States  expressly  limit  the  finality  of  the  determi- 


64186  U.  S.  193,  46  Law  Ed.  1121. 


Judicial  Review  of  Administrative  Decisions.  501 

nation  of  the  immigration  officers  to  the  case  of  aliens, 
but  the  rules  of  the  Department  are  to  the  same  effect. 
But  it  seems  idle  to  speak  of  limiting  the  jurisdiction  of 
such  officers  to  cases  of  aliens  in  the  absence  of  some  rule 
whereby  it  may  be  determined  who  are  aliens  and  who  are 
not.  The  question  of  whether  a Chinese  person  is  a citizen 
of  the  United  States  is  dependent  on  one  fact  only:  that 
of  his  birth  in  the  United  States;  and  unless  the  fact  is 
proven  who  shall  say  that  in  excluding  such  a person 
under  the  Act  of  1894  the  provisions  of  the  statute  have 
been  invoked  for  the  purpose  of  banishing  a citizen  of  the 
United  States?  The  only  forum  provided  by  law  for  ascer- 
taining that  fact  is  the  Department  of  Commerce  and 
Labor ; and,  therefore,  the  claim  of  citizenship,  if  not  proven 
in  that  forum,  cannot,  for  political  purposes  at  least, 
insofar  as  the  right  to  enter  under  the  Chinese  exclusion 
laws  is  based  thereon,  be  said  to  exist.  Whether  or  not 
Congress  acted  wisely  in  restricting  a person  alleging 
United  States  citizenship  to  so  limited  a forum  may  well 
be  considered  a matter  of  grave  doubt ; but,  admitting  that 
by  passing  the  Act  of  1894  Congress  has  done  so — and  such 
is  undoubtedly  the  law  to-day — there  seems  to  be  no  justi- 
fication for  the  assertion  that  Congress  has  authorized 
“the  banishment  of  American  citizens”  at  the  discretion 
of  the  Secretary  of  Commerce  and  Labor  without  the  right 
of  appeal  to  the  courts. 

As  the  result  of  these  cases  it  is  settled  law  that  the 
mere  allegation  of  citizenship  by  one  excluded  from  entry 
under  the  exclusion  and  immigration  acts  does  not  go  to 
the  jurisdiction  of  executive  officers.  But  the  fact  of  citi- 
zenship once  proven  in  the  mode  provided  for  such  proof 
by  the  statute  necessarily  goes  to  that  jurisdiction.  This 
was  decided  by  the  Supreme  Court  in  the  case  of  United 
States  v.  Wong  Kim  Ark65  where  the  departmental  officers 
found  that  the  applicant,  a person  of  Chinese  descent,  was 


65169  U.  S.  649,  42  Law  Ed.  890. 


502  The  Exclusion  and  Expulsion  of  Aliens. 


born  in  the  United  States.  There  the  only  issue  was  as  to 
w^h  ether  birth  in  this  country  made  the  applicant  an  Amer- 
ican citizen,  and  the  court  held  that  it  did.  There  was  no 
dispute  as  to  the  facts. 

2.  Aliens  Not  Subject  to  the  Operation  of  the  Immigra- 
tion Laws. 

With  the  passage  of  the  Act  of  1894,  the  principle  that 
the  decision  of  executive  officers  rendered  under  conditions 
set  out  in  that  act  were  final  and  binding  on  the  judi- 
ciary, was  universally  accepted  by  the  courts.66  But  it 
was  also  recognized  that  the  decisions  of  immigration  offi- 
cers were  not  final  when  based  on  a finding  of  fact  which 
showed  that  the  aliens  excluded  were  not  members  of  a 
class  upon  which  the  acts  under  the  color  of  which  they 
were  refused  admission  were  intended  to  be  operative.67 

(A.)  Domiciled  Aliens  Returning  to  the  United  States. 

Prior  to  the  Act  of  March  3,  1903,  the  immigration  acts 
had  been  almost  invariably  held  to  include  within  their 
operation — aside  from  certain  classes  of  aliens  whose  en- 
trance was  specially  prohibited — only  alien  immigrants, 
or  persons  coming  to  the  United  States  for  the  first  time 
for  the  purpose  of  establishing  their  domicile  in  this 
country.  It  had  been  held  in  1895  that  the  “entire  body 

66Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  421;  Fok  Young  Yo  v. 
United  States,  185  U.  S.  306,  46  Law  Ed.  917;  Li  Sing  v.  United  States, 
180  U.  S.  486,  45  Law  Ed.  634 ; Lem  Moon  Sing  v.  United  States,  158  U.  S. 
539,  39  Law  Ed.  1082;  United  States  v.  Watchorn,  164  Fed.  152;  Ex  parte , 
Stancampiano,  161  Fed.  164;  Ex  parte,  Lung  "Wing  Wun,  161  Fed.  211; 
United  States  v.  Wong  Soo  Bow,  112  Fed.  416;  United  States  v.  Wong 
Chow,  108  Fed.  376;  United  States  v.  Gin  Fung,  100  Fed.  389;  in  re  Way 
Tai,  96  Fed.  484;  in  re  Leong  Wouk  Tong,  90  Fed.  648;  in  re  Moses,  83 
Fed.  995;  in  re  Chin  Yeun  Sing,  65  Fed.  571. 

67As  where  there  is  an  agreed  finding  of  facts  that  the  children  of  domi- 
ciled aliens  born  in  the  United  States  are  held  for  deportation  (in  re 
Giovanna,  93  Fed.  659)  or  where  Chinese  minors  are  found  to  be  the 
adopted  children  of  a Chinese  merchant  domiciled  in  the  United  States  (ex 
parte  Fong  Yim,  134  Fed.  938) ; and  see  160  Fed.  1014  and  176  Fed.  478. 


Judicial  Review  of  Administrative  Decisions.  503 

of  statute  law  touching  the  exclusion  of  contract  laborers 
shows  that  it  is  directed  solely  against  alien  immigrants, 
not  against  alien  residents,  when  returning  after  a tem- 
porary absence ;” 68  and  this  view  was  generally  adopted 
by  the  Federal  courts  both  before  and  after  the  rendering 
of  the  decision  just  quoted  up  to  the  passage  of  the  Act 
of  March  3,  1903.69  In  the  decision  from  which  the  quota- 
tion is  taken  it  was  held  that  when  it  appeared  that  the 
relator,  an  unmarried  man,  came  to  this  country  with  the 
intention  of  making  it  his  permanent  abode,  remained  here 
about  two  years,  and  then  left  for  his  native  country  with 
the  intention  of  returning  might,  if  detained  by  order 
of  the  immigration  authorities  on  such  return,  claim  his 
right  to  be  discharged  on  habeas  corpus.  Later  decisions 
rendered  under  the  Acts  of  1891  and  1893  sustained  this 
holding,  asserting  that  the  courts  had  jurisdiction  to  pass 
on  the  question  of  whether  or  not  the  petitioner  was  an 
alien  immigrant.70 

By  the  Act  of  March  3,  1903,  the  term  “alien  immi- 
grants” as  used  in  the  preceding  acts,  was  in  certain  sec- 
tions discarded,  and  the  word  “aliens”  substituted  there- 
for. The  significance  of  this  change  has  been  discussed 
at  length  in  an  earlier  chapter.71  Its  significance  for  the 
purposes  of  the  point  at  present  under  discussion  amounts 
to  this : If  the  word  “immigrants”  was  deliberately 
omitted  from  the  Act  of  1903,  for  the  purpose  of  extend- 
ing the  scope  of  that  act  to  all  aliens  entering  the  United 
States  irrespective  of  whether  or  not  they  might  be  return- 
ing to  resume  a domicile  already  lawfully  established,  the 
effect  would  be  to  vest  executive  officers  with  jurisdiction 
over  a certain  class  of  aliens — those  who  were  found  on 
examination  to  have  already  acquired  a domicile  in  this 

68 In  re  Maiola,  67  Fed.  114. 

69 In  re  Panzara,  51  Fed.  275;  in  re  Martorelli,  63  Fed.  437;  in  re  Ota, 
96  Fed.  487. 

70 In  re  Di  Simone,  108  Fed.  942 ; but  reversed  on  confession  of  error. 

71Chapter  on  Status,  ante,  p.  434  et  seq. 


504  The  Exclusion  and  Expulsion  of  Aliens. 


country,  and  to  be  returning  for  the  purpose  of  continuing 
to  maintain  the  same — which,  by  a practically  unbroken 
line  of  judicial  decisions,  such  officers  had  been  held  not 
to  exercise. 

Under  the  Act  of  1903,  various  judicial  opinions,  con- 
flicting as  to  the  finality  of  executive  decisions,  were  ren- 
dered by  the  Federal  courts.  On  the  one  hand  (and  citing 
as  authority  the  case  of  Lem  Moon  Sing  v.  United  States) 
it  was  held  that  the  Act  of  1903  applied  to  “all  aliens ;” 72 
on  the  other,  it  was  asserted  that  the  change  of  termin- 
ology from  “alien  immigrants”  to  “aliens”  could  not  be 
construed  to  have  this  effect  and  that  the  courts  had  the 
right  of  review  in  such  cases.73  The  conflict  in  judicial 
opinion  on  this  point  is  still  apparent  in  decisions  ren- 
dered under  the  present  act,  although  in  section  25  thereof 
the  word  “aliens”  used  in  the  Act  of  1903  has  been  dis- 
carded and  the  term  “immigrants”  substituted  therefor.74 

But  conceding  that  the  term  “aliens”  as  used  in  section 
2 of  the  present  act,  wherein  are  designated  the  classes  of 
aliens  excluded  from  admission — and,  it  may  be  noted,  as 
used  in  section  2 of  the  preceding  act,  and  in  the  cor- 
responding section  of  the  Act  of  March  3,  1891,  which  had 
been  steadily  held  to  apply  only  to  alien  immigrants — 
means  “all  aliens,”  still  the  question  remains  unsolved  as 
tc  whether  or  not  the  act  is  to  be  considered  confined  in 
its  operation  to  all  aliens  seeking  “admission”  or  is  meant 
to  include  all  aliens  who,  after  having  once  been  “ad- 
mitted” depart  temporarily  and  then  return. 

Attention  has  been  called  to  the  fact  that  the  Lem  Moon 
Sing  case  has  been  cited  in  support  of  the  view  that  the 

72Taylor  v.  United  States,  152  Fed.  1. 

73United  States  v.  Nakashima,  160  Fed.  842;  United  States  v.  Altman, 
143  Fed.  922;  in  re  Buchsbaum,  142  Fed.  221;  Rodgers  v.  United  States, 
152  Fed.  346 ; Redfern  v.  Halpert,  186  Fed.  150. 

74United  States  v.  Williams,  187  Fed.  470;  in  re  Hoffman,  179  Fed.  839; 
ex  parte  Koerner,  176  Fed.  478;  United  States  v.  Villet,  173  Fed.  500; 
United  States  v.  Hook,  166  Fed.  1007;  ex  parte  Petterson,  166  Fed.  536; 
ex  parte  Crawford,  165  Fed.  830;  United  States  v.  Watehorn,  164  Fed.  152. 


Judicial  Review  of  Administrative  Decisions.  505 


excluding  provisions  of  the  present  act  and  the  Act  of 
1903  apply  to  aliens  domiciled  in  this  country  as  well  as 
those  seeking  admission  here  for  the  first  time.  It  is  true 
that  in  that  case  the  Act  of  1894  makes  the  decision  of  de- 
partmental officers  final  in  excluding  an  alien  from  “ad- 
mission” to  the  United  States,  and  that  the  Supreme  Court 
upheld  the  application  of  the  act  to  the  case  of  a person 
claiming  to  be  a Chinese  merchant  returning  to  the  United 
States.  It  must  be  borne  in  mind,  however,  that  the  reason 
why  the  applicant  was  refused  admission  by  the  collector 
of  customs  was  simply  because  the  collector  had  not  found 
as  a fact  that  he  was  a returning  merchant.  Had  this 
been  the  result  of  the  administrative  finding — in  other 
words  had  the  applicant  proved  his  mercantile  status  in 
accordance  with  the  provisions  of  the  acts  under  which  he 
sought  to  enter — he  would  have  been  permitted  to  enter  as 
a matter  of  right.  The  principle  for  which  the  applicant 
contended  was  that  having  acquired  a domicile  in  this 
country  his  right  to  retain  it  could  not  be  lawfully  made  to 
depend  on  the  decision  of  an  executive  officer ; but  the  court 
held  that  the  mere  fact  of  such  acquisition  of  domicile  by  a 
foreigner  could  not  render  him  immune  from  the  operation 
of  municipal  legislation  enacted  subsequently  to  his  ac- 
quisition of  such  domicile  and  which  specifically  included 
him  in  its  operation.  In  relying  on  the  Lem  Moon  Sing 
case  those  courts  which  have  done  so  seem  to  have  over- 
looked the  fact  that  the  right  of  the  applicant  to  return  in 
that  case  could  only  be  claimed  under  some  law  or  treaty 
of  the  United  States ; whereas  the  right  of  domiciled  aliens 
of  other  nationalities  to  return  had  never,  until  the  passage 
of  the  Act  of  March  3,  1903,  been  held  by  the  courts  to 
depend  on  any  law  or  treaty  whatsoever.  At  the  time  of 
the  passage  of  the  Act  of  August  18,  1894,  no  one  would 
have  claimed  that  the  right  of  domiciled  aliens  other 
than  Chinese  to  return  to  the  United  States  was  dependent 
for  its  exercise  upon  some  law  or  treaty  of  the  United 


506  The  Exclusion  and  Expulsion  of  Aliens. 

States.  The  right  of  such  aliens  to  retain  their  domicile 
was,  under  the  universally  recognized  rule  of  interna- 
tional law  the  necessary  consequence  of  having  been  al- 
lowed by  this  Government  to  acquire  it.  And  it  would 
seem  that  had  Congress  in  the  just  exercise  of  its  sovereign 
powers  seen  fit  to  revoke  that  right  by  municipal  legis- 
lation, it  would  have  done  so  in  an  unmistakable  manner ; 
and  the  fact  that  in  selecting  the  terms  by  which  to 
designate  in  the  second  section  of  the  Acts  of  1903  and 
1907  those  aliens  who  should  be  subject  to  the  excluding 
provisions  thereof  it  repeated  word  for  word  the  term  used 
in  the  corresponding  section  of  the  Act  of  March  3,  1891, 
which  had  never  been  held  to  apply  to  returning  domiciled 
aliens,  is  of  itself  an  indication  that  the  rights  hitherto 
enjoyed  by  them  under  earlier  acts  were  to  remain  undis- 
turbed. 


(B.)  Citizens  of  the  Insular  Possessions. 

In  the  case  of  Gonzales  v.  Williams,75  the  petitioner  in 
habeas  corpus , an  unmarried  woman  and  a native  of  Porto 
Rico  residing  there  on  April  11,  1899,  the  date  of  the 
ratification  of  the  Treaty  of  Paris  whereby  Porto  Rico 
was  ceded  to  the  United  States,  on  seeking  admission  to 
this  country  was  denied  entry  on  the  ground  that  she  was 
an  alien  and  subject  to  exclusion  under  the  Immigration 
Act  of  March  3,  1891.  The  Government  contended  that  by 
virtue  of  the  provisions  of  that  act  and  of  the  Act  of 
August  18,  1894,  the  decisions  of  the  departmental  officers 
was  final ; further,  that  not  having  been  found  to  be  a citi- 
zen of  the  United  States,  she  must  necessarily  be  an  alien, 
and,  therefore,  within  the  departmental  jurisdiction.  But 
the  court  held  that  the  question  in  the  case  was  not 
whether  she  was  a citizen  of  the  United  States,  but  whether 
she  was  an  alien  within  the  intent  of  the  immigration 
statute,  and  that  the  courts  were  not  bound  by  the  deci- 


76192  U.  S.  1,  48  Law  Ed.  317. 


Judicial  Review  of  Administrative  Decisions.  507 

sions  of  the  executive  officers  in  such  a case  as  this, 
thereby  denying  the  application  thereto  of  the  Act  of  1894. 
There  was  no  dispute  as  to  the  fact ; the  only  question  was 
the  question  of  law  as  to  whether  or  not  a citizen  of  Porto 
Rico  conies  within  the  operation  of  the  immigration  acts, 
which,  being  decided  in  the  negative,  all  questions  of  fact 
were  held  to  become  immaterial.  The  court  accordingly 
granted  the  writ.  The  same  result  would  necessarily  fol- 
low were  such  an  appeal  presented  by  a citizen  of  the 
Philippine  Islands  or  of  Hawaii. 

(C.)  Alien  Seamen. 

Foreign  seamen  in  the  bona  fide  exercise  of  their  calling 
have  been  consistently  held  by  the  courts  not  to  come 
within  the  excluding  provisions  of  either  the  immigration 
or  the  Chinese  exclusion  laws.  In  construing  the 
Act  of  March,  1903,  Mr.  Justice  Holmes  pointed  out  that 
the  act  has  no  application  to  foreign  sailors  carried  to 
an  American  port  with  a bona  fide  intent  to  take  them 
out  again  when  the  ship  goes  on,  since  it  is  necessary 
to  commerce  that  sailors  should  go  ashore  in  the  ordinary 
pursuits  of  their  calling,  and  that  it  would  be  unreason- 
able to  believe  that  the  statute  altogether  intended  to 
prohibit  their  doing  so.76 

3.  When  Applicant’s  Status  Has  Already  Been  Definitely 
Decided  by  Competent  Authority. 

While  the  jurisdiction  of  departmental  officers  to  finally 
pass  on  the  facts  on  which  the  right  of  aliens  seeking  ad- 
mission is  based  cannot  be  questioned,  those  facts  may 
reveal  causes  other  than  those  consisting  in  the  failure  of 
the  statute  to  apply  to  a given  case,  which  will  justify 
the  court  in  affording  relief  in  habeas  corpus.  Thus,  when 
the  facts  below  show  that  a Chinese  alien  seeking  admis- 
sion into  the  United  States  has  received  a judgment  of  dis- 

76Taylor  v.  United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


508  The  Exclusion  and  Expulsion  of  Aliens. 


charge  on  the  merits  from  a United  States  commissioner, 
that  discharge  is  as  binding  on  the  Secretary  of  Commerce 
and  Labor  as  it  would  be  on  the  Government  in  the  pro- 
ceeding in  which  the  order  was  issued,77  although  the  ex- 
ecutive decision  is  final  on  the  point  of  whether  or  not 
the  alien  presenting  the  discharge  is  in  fact  the  individual 
to  whom  it  was  issued.78 

4.  Loss  of  Departmental  Jurisdiction  by  Alien’s  Change 

of  Status. 

It  has  been  held  that  departmental  jurisdiction  may  be 
lost  by  a change  of  status  of  the  person  detained  for  de- 
portation ; thus  where,  pending  the  deportation  of 
an  alien  woman,  and  pending  her  application  for 
release  on  habeas  corpus,  she  marries  a citizen  of  the 
United  States  she  is  at  once  entitled  to  her  discharge  from 
custody,  and  if  this  is  refused  to  her  release  on  the  writ.79 
However,  this  is  due  to  the  fact  that  under  the  naturali- 
zation laws  she  herself  becomes  as  an  individual  a citizen 
of  the  United  States;  and  this  can  only  occur  when  the 
woman  herself  is  capable  of  being  naturalized.80 

And  when  an  alien  woman  marries  an  alien  abroad,  who 
deserts  her,  and,  after  coming  to  the  United  States  becomes 
a citizen  of  this  country,  she  herself  becomes  a citizen  of  the 

77Leong  June  v.  United  States,  171  Fed.  413.  As  is  the  judgment  of  a 
District  Court  in  habeas  corpus  proceedings  as  to  alien's  right  to  remain. 
United  States  v.  Chung  Shee,  76  Fed.  951. 

78j Ex  parte  Long  Lock,  173  Fed.  208;  ex  parte  Lung  Wing  Wun,  161  Fed. 
211. 

79Hopkins  v.  Fachant,  130  Fed.  839;  but  see  contra  cases  in  chapter  on 
Statutes. 

soWhere  the  change  of  status  is  brought  about  not  by  marriage,  but  by 
adoption,  pending  deportation  proceedings  it  has  been  held  that  depart- 
mental officers  do  not  lose  their  juris dicition  thereby.  Co  v.  Rafferty,  14 
Phil.  Rep.  235.  To  deport  the  alien  who  has  in  this  way  actually  acquired 
a bona  fide  communicated  status  which  would  entitle  him  to  admission 
would  seem  a somewhat  futile  proceeding,  since  after  being  deported  he 
would  have  a perfect  right  to  enter  on  his  return.  See  Rafferty  v.  Judge 
of  First  Instance,  7 Phil.  Rep.  164. 


Judicial  Beview  of  Administrative  Decisions.  509 

United  States  and  is  not  subject  to  the  operation  of  the 
immigration  laws  even  though  after  the  desertion  she  be- 
comes the  mistress  of  another  ;81  nor  is  the  right  of  such  a 
woman  to  enter  the  United  States  affected  because  she 
is  at  the  time  of  attempted  entry  afflicted  with  trachoma.82 
In  the  course  of  a dissenting  opinion  rendered  in  the  re- 
cent case  of  United  States  v.  Sprung,83  where  the  majority 
of  the  court  refrained  from  passing  on  the  exact  point 
Judge  Pritchard  stated  that  “the  immigration  laws  have 
not  added  to  the  persons  incapable  in  their  own  right  of 
naturalization.”  In  an  earlier  Federal  decision,84  where 
the  right  to  enter  was  based  on  a marriage  the  existence 
of  which  was  not  denied,  the  court  observed,  obiter,  that 
it  was  admitted  by  both  the  Government  and  the  applicant 
that  the  right  to  enter  depended  on  whether  or  not  there 
was  a lawful  marriage — but  that  where  the  marriage, 
although  lawful  in  the  country  of  origin  was  incestuous 
here  the  relationship  could  not  be  admitted  to  be  such  as 
to  entitle  the  applicant  to  enter  as  an  American  citizen. 
Some  courts  have,  however,  taken  the  view  that  the  acqui- 
sition of  citizenship  by  marriage  must  depend  on  whether 
the  woman  is  admissible  under  the  immigration  laws. 
Indeed,  it  has  been  held  that  where  the  purpose  of  the 
marriage  was  to  avoid  deportation  the  celebration  of  the 
ceremony  did  not  remove  the  alien  wife  from  the  opera- 
tion of  the  immigration  law.85  In  this  case  the  court  was 
of  the  opinion  that  an  alien  woman  belonging  to  a class 
of  persons  excluded  by  law  from  entry  into  the  United 
States  is  incapable  of  naturalization,  basing  its  decision 
on  a prior  Federal  case  to  the  same  effect.  In  that  case86 
the  court  said:  “The  immigration  laws  have  since  added 
to  the  class  of  persons  who  are  incapable  in  their  own 

81/71  re  Nicola,  184  Fed.  323. 

82  Ibid. 

83187  Fed.  914. 

84United  States  v.  Rodgers,  109  Fed.  886. 

85 Ex  parte  Kaprielian,  188  Fed.  694. 

86/ti  re  Rustigian,  165  Fed.  980. 


510  The  Exclusion  and  Expulsion  of  Aliens. 

right  of  naturalization.”  For  the  reasons  stated  in  a 
prior  chapter,87  it  is  thought  that,  given  the  administra- 
tive finding  of  fact  of  an  actual  marriage  between  a citizen 
of  the  United  States  and  a woman  of  foreign  extraction, 
the  jurisdiction  of  the  Secretary  of  Commerce  and  Labor 
ceases  ipso  facto  and  a departmental  decision  of  exclusion 
or  expulsion  is  not  binding  on  the  courts. 

C.  Finality  of  Departmental  Findings  as  to  Right 

to  Enter. 

1.  Extent  of  and  to  What  Applicable. 

In  providing  that  the  decisions  of  departmental  officers 
should  be  final  the  Act  of  1894  went  no  further  than  to  re- 
quire that  the  administrative  decisions  should  be  final  as 
to  the  existence  of  the  particular  fact  or  facts  on  which 
the  right  of  the  alien  to  enter  is  based.  Thus  the  decision 
of  a customs  official  refusing  a Chinese  alien  admission 
into  the  United  States,  who  seeks  it  on  the  ground  that 
he  is  a Chinese  merchant  and  as  such  is  entitled  to  enter, 
is  final  only  as  to  his  right  to  enter  as  such  merchant 
and  is  not  final  in  deportation  proceedings  brought  before 
a United  States  commissioner  in  order  to  determine  the 
right  of  the  prisoner  to  remain  in  this  country  when  such 
right  is  based  on  the  claim  that  he  is  a citizen  thereof; 
nor  is  the  decision  of  a departmental  officer,  final  although 
it  may  be  as  to  the  right  of  a Chinese  person  to  land,  final 
as  to  his  right  to  remain,  and  cannot,  therefore,  constitute 
a bar  to  his  right  to  remain  in  deportation  proceedings 
before  a United  States  commissioner.89 

A final  excluding  decision  rendered  by  an  immigrant  in- 
spector at  the  port  is  effective,  as  far  as  the  right  of  the 
alien  excluded  thereby  is  concerned,  not  only  at  the  port 
where  such  decision  was  rendered,  but  at  any  other  port 

sfChapter  on  Status,  ante,  p.  385  et  seq. 

89United  States  v.  Wong  Chung,  92  Fed.  141. 


Judicial  Review  of  Administrative  Decisions.  511 

where  the  alien  may  seek  to  enter.90  Departmental  deci- 
sions are  not  final,  however,  when  rendered  in  deference 
to  a departmental  regulation  providing  for  the  exclusion 
of  aliens  where  Congress  has  made  no  such  provision,91 
but  a decision  based  on  a valid  regulation  is  final,  and  the 
courts  will  not  grant  the  writ  when  the  ground  urged  in 
the  petition  is  the  exacting  nature  of  the  rules  in  the 
matter  of  the  evidence  to  be  required  of  aliens  by  which 
to  establish  their  right  to  enter  or  remain  in  the  United 
States.92 


2.  Favorable  Decisions  Not  Final. 

The  act  provides  that  only  excluding  decisions  not  re- 
versed on  appeal  are  final;  therefore,  the  favorable  deci- 
sions of  executive  officers  are  by  necessary  implication  not 
final,  and  cannot  constitute  res  judicata  in  a technical 
sense;93  and  the  fact  that  an  alien  has  been  arrested  once 
under  the  Act  of  February  20,  1907,  on  the  charge  of  hav- 
ing committed  abroad  a crime  involving  moral  turpitude 
and  has  been  discharged  by  the  Secretary  of  Commerce 
and  Labor  because  he  was  not  identified  as  the  person 
named  in  the  certificate  of  conviction  will  not  authorize 

9 °Ex  parte  Lung  Foot,  174  Fed.  70. 

91  In  re  Kornmehl,  87  Fed.  314. 

92lfl,  re  Moy  Quong  Shing,  125  Fed.  641. 

93Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029;  Li  Sing  v. 
United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Pearson  v.  Williams, 
136  Fed.  734;  Mar  Bing  Guey  v.  United  States,  97  Fed.  576;  In  re  Li  Foon, 
80  Fed.  881;  and  see  Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721; 
United  States  v.  Lim  Jew,  192  Fed.  644.  The  facts  in  this  case  showed 
that  the  defendant,  a Chinese  person,  left  the  United  States  for  China  in 
1905  and  was  allowed  to  re-enter  as  a native  born  citizen  in  1908  on  a cer- 
tificate describing  him  as  such.  He  was  arrested  in  1909  and  found  by  the 
commissioner  to  be  a native  of  China  unlawfully  in  this  country.  In  1888 
a United  States  Circuit  Court  rendered  a decision  to  the  effect  that  he  was 
a resident  of  this  country  prior  to  1880  and  released  him  on  habeas  corpus 
proceedings.  Held,  the  judgment  not  conclusive  as  to  his  nativity  nor  was 
the  administrative  finding  at  the  time  of  his  second  entry  res  adjudicata  of 
his  citizenship,  on  which  he  based  his  right  to  remain.  Affirmed  in  Lim  Jew 
v.  United  States,  196  Fed.  736. 


512  The  Exclusion  and  Expulsion  of  Aliens. 


his  release  under  habeas  corpus  proceedings  when  again 
arrested  on  the  same  charge  by  the  same  authority.94 

3.  Administrative  Findings  of  Fact  Only  Are  Final. 

The  question  as  to  whether  administrative  officers  are 
proceeding  according  to  law  is  a judicial  question  and  is 
at  all  times  open  to  inquiry  by  the  courts  on  habeas 
corpus ,95  And,  though  the  final  determination  of  a depart- 
mental official  with  power  to  determine  the  question  may 
not  be  reviewed,  the  courts  will  inquire  into  whether  the 
law  grants  such  right  of  final  determination  ;96  or  whether, 
on  a given  state  of  facts  the  right  to  deport  at  all  lies  with 
executive  officers.  Thus,  where  the  Secretary  of  Com- 
merce and  Labor  ordered  an  alien  to  be  deported  on  the 
ground  of  having  imported  a foreign  woman  for  an  im- 
moral purpose,  and  the  court  construed  section  3 of  the 
Act  of  March  26,  1910,  to  provide  that  such  deportation 
can  be  legally  accomplished  only  after  actual  conviction 
of  the  offense,  the  court  ordered  his  discharge  in  habeas 
corpus  on  a showing  that  there  had  been  no  conviction.97 
It  has  also  been  held — and  very  generally — that  the  final 
determination  of  what  statute  may  be  applicable  to  a par- 
ticular case  coming  before  the  Secretary  of  Commerce 
and  Labor,  or  whether  indeed,  immigration  laws  apply 
at  all,  cannot  rest  with  the  executive  department.98  There- 
fore, when  it  is  said  that  the  courts  have  the  right  to  de- 
termine who  is  an  alien  under  the  Act  of  March  3,  1901,99 
or  that  when  the  question  as  to  the  jurisdiction  of  de- 

sfFar  parte  Stancampiano,  161  Fed.  164. 

96Lavin  v.  Lefevre,  125  Fed.  693;  In  re  Top  Chin,  2 U.  S.  D.  Ct.  Hawaii 
153 ; In  re  Pang  Kun,  ibid.  192. 

seRodgers  v.  United  States,  157  Fed.  381. 

97Lewis  y.  Frick,  189  Fed.  146,  reversed  by  the  Circuit  Court  of  Appeals 
for  the  Sixth  Circuit,  195  Fed.  693. 

ssDavies  v.  Manolis,  179  Fed.  818;  Botis  v.  Davies,  173  Fed.  996;  In  re 
Lea,  126  Fed.  234;  and  see  United  States  v.  Taylor,  207  U.  S.  120,  52 
Law  Ed.  130;  Gonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 

99 in  re  Di  Simone  108  Fed.  942,  reversed  upon  confession  of  error. 


Judicial  Review  of  Administrative  Decisions.  513 

partmental  officers  to  decide  as  to  the  right  of  aliens  to 
enter  the  United  arises  under  the  immigration  laws  the 
courts  can  inquire  as  to  whether  or  not  the  officers  had 
jurisdiction  over  the  person  affected  by  the  decision,  this 
should  mean — not  that  the  courts  can  pass  on  the  correct- 
ness of  the  finding  of  fact  whereby  the  officer  reaches  the 
conclusion  that  the  alien  is  an  immigrant, — but  merely  that 
they  are  empowered  to  decide,  on  the  given  state  of  facts, 
whether  or  not  the  law  applies  to  the  applicant. 

4.  'Necessity  for  a Fair  Hearing. 

On  the  principles  enunciated  in  the  case  of  Yamataya 
v.  Fisher  (often  referred  to  as  the  Japanese  immigrant 
case100)  no  person  can  be  deprived  of  his  liberty  and  de- 
tained for  deportation  in  the  absence  of  having  been  af- 
forded an  opportunity  to  present  the  facts  upon  which 
the  right  to  enter  is  based  to  the  officer  whose  duty  it  is 
to  pass  on  these  facts,1  and  this  principle  applies  with 
double  force  where  the  decision  rendered  holds  that  the 
master  of  a vessel  is  liable  for  bringing  an  alien  into  a 
United  States  port  who  escaped  from  the  vessel,  and  after 
deserting  became  insane,  and  where  the  master  was  found 
guilty  of  an  infraction  of  the  immigration  act  of  March 
3,  1903,  without  being  given  an  opportunity  of  pleading 
his  case  before  the  administrative  authorities.2  A fair 
hearing  is  absolutely  essential  to  the  right  of  executive 
officers  to  deport.  But  if  such  a hearing  is  granted  to 
aliens  subject  to  the  operation  of  the  exclusion  and  immi- 
gration statutes,  and  as  a result  thereof  they  have  been 
excluded  from  admission  into  or  expelled  from  this  coun- 
try without  any  abuse  of  authority,  and  in  the  absence  of 
arbitrary  action,  recourse  to  the  courts  is  absolutely  de- 
nied.3 

iooi89  U.  S.  86,  47  Law  Ed.  721. 

iHopkins  v.  Fachant,  130  Fed.  839. 

2Waterhouse  & Co.  v.  United  States,  159  Fed.  876. 

sUnited  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040;  Yamataya  v. 


514  The  Exclusion  and  Expulsion  of  Aliens. 

(A.)  What  Constitutes  a Fair  Hearing. 

(1.)  Opportunity  to  be  heard. 

The  hearing  must  be  appropriate  to  the  nature  of  the 
case  upon  which  the  executive  officers  are  to  act,  and  the 
alien  must  be  given  all  opportunity  to  be  heard  upon  the 
question  involving  his  right  to  be  and  remain  in  the 
United  States  ;4  but  ignorance  of  the  English  language  on 
the  part  of  the  alien  does  not  necessarily  make  a hearing 
a “pretended”  one  and  gives  no  ground  for  relief  in  habeas 
corpus .6 

In  the  case  of  Chin  Yow  v.  United  States,6  the  petitioner 
was  a Chinese  person  refused  admission  by  the  executive 
authorities.  He  sought  relief  in  habeas  corpus.  The  pe- 
tition contained  the  usual  allegations  of  citizenship,  re- 
straint and  denial  of  entry  by  the  authorities,  and  in  addi- 
tion thereto  the  further  allegation  that  he  was  prevented 
from  obtaining  the  testimony  of  certain  witnesses  duly 
designated  by  name,  and  that,  had  he  been  permitted  he 
could  have  proved  his  citizenship  in  the  United  States 
through  such  witnesses — the  import  of  these  allegations 
being  that  the  petitioner  was  arbitrarily  denied  the  hear- 
ing which  the  statute  meant  he  should  have.  The  Supreme 
Court  held  that  the  foundation  of  jurisdiction  of  the 
courts  in  habeas  corpus  in  such  cases  is  the  absence  of  a 
fair  hearing,  and  of  an  opportunity  to  produce  evidence; 
but  that  mere  allegations  to  this  effect  do  not  open  the 
case  on  the  merits,  and  the  fact  that  the  department  re- 
fuses to  accept  certain  sworn  statements  as  true  is  not  of 
itself  sufficient  to  give  the  courts  jurisdiction. 

Said  the  court : “The  statutes  purport  to  exclude  aliens 

Fisher,  189  U.  S.  86,  47  Law  Ed.  721;  Edsell  v.  Mark,  179  Fed,  292;  Ex 
parte  Chin  Hen  Lock,  174  Fed.  282;  Ex  parte  Lung  Foot,  174  Fed.  70;  Ex 
parte  Long  LocTc,  173  Fed.  208;  United  States  v.  Wood,  168  Fed.  438;  Ex 
parte  Lee  Kow,  161  Fed.  592;  Ex  parte  Jong  Jim  Hong,  157  Fed.  447. 
*Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 

&Ibid. 

6208  U.  S.  8,  52  Law  Ed.  369. 


Judicial  Review  of  Administrative  Decisions.  515 

only.  They  create  or  recognize the  right  of  citizens 

outside  the  jurisdiction  to  return  to  the  United  States.  If 
one  alleging  himself  to  be  a citizen  is  not  allowed  a chance 
to  establish  his  right  in  the  mode  provided  by  those  stat- 
utes, although  that  mode  is  intended  to  be  exclusive  the 
statutes  cannot  require  him  to  be  turned  back  without 
more.  The  decision  of  the  department  is  final,  but  that 
is  on  the  presupposition  that  the  decision  was  after  a 
hearing  in  good  faith,  however  summary  in  form.  As  be- 
tween the  substantive  right  of  citizens  to  enter,  and  of 
persons  alleging  themselves  to  be  citizens  to  have  a chance 
to  prove  their  allegation  on  the  one  side,  and  the  conclu- 
siveness of  the  commissioner’s  fiat  on  the  other,  when  one 
or  the  other  must  give  way,  the  latter  must  yield.  In  such 
a case  something  must  be  done,  and  it  naturally  falls  to  be 
done  by  the  courts.” 

The  court  added  that  detention  for  deportation  on  a 
vessel  constitutes  actual  imprisonment.  “De  facto  he  is 
locked  up  and  carried  out  of  the  country  against  his  will. 
The  petitioner  then  is  imprisoned  for  deportation  without 
the  process  of  law  to  which  he  is  given  a right.  Habeas 
corpus  is  the  usual  remedy  for  unlawful  imprisonment. 
But,  on  the  other  hand,  as  yet  the  petitioner  has  not 
established  his  right  to  enter  the  country.  He  is  impris- 
oned only  to  prevent  his  entry,  and  an  unconditional  re- 
lease would  make  the  entry  complete  without  the  requisite 
proof.  The  courts  must  deal  with  the  matter  somehow, 
and  there  seems  to  be  no  way  so  convenient  as  a trial  of 
the  merits  before  the  judge.”  7 

(2.)  Executive  Officers  Must  Consider  All  the  Evidence 
Submitted. 

Executive  officers  have  no  power  to  designate  what  evi- 

7Where  an  alien  is  held  for  deportation  on  the  ground  of  being  an  alien 
stowaway  which  he  denies,  and  who  on  the  same  ground  is  not  granted  any 
hearing  whatsoever  by  a board  of  special  inquiry,  the  court  will  grant  his 
application  for  the  issuance  of  a writ  of  habeas  corpus.  United  States  ea 
rel.  d 'Amato  v.  Williams,  193  Fed.  228. 


516  The  Exclusion  and  Expulsion  of  Aliens. 


dence  shall  be  considered  by  them,  but  are  under  the  obli- 
gation of  admitting  and  passing  upon  all  that  is  offered 
by  the  applicant;8  and  failure  to  admit  it  or  the  commis- 
sion of  acts  that  make  it  impossible  for  the  applicant  to 
present  it,  and  to  detain  him  for  deportation  without  giv- 
ing him  an  opportunity  to  present  it  is  arbitrarily  to  deny 
him  the  right  of  a hearing  provided  by  law.9  And  it  has 
been  held,  and  very  naturally,  that  such  officers  may  con- 
sult records  which  have  a connection  with  the  alien’s  case 
other  than  the  precise  papers  which  are  sent  up  before  the 
Secretary  of  Commerce  and  Labor  on  appeal,  including  in 
the  latter  records  statements  that  have  a bearing  on  the 
contents  of  the  former.10 

(3.)  Denial  of  the  Eight  of  Appeal. 

When  the  statute  gives  the  right  of  appeal  to  higher 
departmental  authority  the  refusal  to  grant  such  appeal 
denies  the  alien  the  “full  opportunity  to  be  heard”  to 
which  he  is  entitled,  and  he  may  claim  relief  by  habeas 
corpus  proceedings.  Thus  where,  on  an  adverse  decision 
of  the  board  of  special  inquiry  the  defendant  was  refused 
the  right  to  have  the  papers  in  the  case  forwarded  to  the 
Secretary  of  the  Treasury,  this  was  held  to  constitute  a 
denial  of  the  right  of  appeal  and  not  to  be  binding  on  the 
courts;11  similarly  the  right  of  appeal  is  denied  where 
there  is  no  hearing  on  the  merits  on  the  appeal  to  the  Sec- 
retary;12 and  likewise  where  some  of  the  evidence  pre- 
sented to  the  inspector  including  facts  tending  to  prove 

sUnited  States  v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917. 

9 Chin  Yow  v.  United  States,  208  U.  S.  8,  52  Law  Ed.  369;  In  re  Chop 
Tin,  2 U.  S.  D.  Ct.  Hawaii  153. 

10 In  re  Jim  Yuen,  188  Fed.  350;  Tang  Tun  v.  Edsell,  223  U.  S.  673,  56 
Law  Ed.  . 

1 xln  re  Monaco,  86  Fed.  117 ; and  seee  Eodgers  v.  United  States,  152  Fed. 
346,  and  United  States  v.  Nakashima,  160  Fed.  842. 

12 In  re  Tang  Tun,  161  Fed.  618;  but  on  appeal  held  to  constitute  a hear- 
ing on  the  merits;  see  Tang  Tun  v.  Edsell,  supra. 


Judicial  Review  of  Administrative  Decisions.  517 

the  American  citizenship  of  the  petitioner  is  not  included 
in  the  record  sent  up  on  appeal  from  the  inspector  to  the 
Secretary  of  Commerce  and  Labor.13 

(4.)  Obligation  of  Departmental  Officers  to  Pass  on  All 
Questions  Before  Them. 

Executive  officers  must  actually  pass  on  the  question 
before  them;  when  they  fail  to  do  so  and  deportation  is 
ordered  before  the  examination  is  closed,  and  before  the 
department’s  final  decision  is  had  on  the  appeal,  the  pro- 
ceedings are  devoid  of  final  effect  and  the  courts  will  be 
justified  in  intervening  on  behalf  of  the  petitioner  in 
habeas  corpus.1*  Moreover,  the  precise  claim  on  which  the 
right  to  enter  is  based  must  be  made  the  subject  of  a de- 
partmental finding,  and  the  failure  to  do  so  cannot  be 
supplemented  by  an  excluding  decision  based  on  other 
grounds.  Thus  where  the  claim  is  that  the  Chinese  alien 
seeking  admission  is  a merchant  and  he  is  ordered  de- 
ported by  the  immigration  authorities  without  passing 
on  his  right  to  enter  as  a merchant,  the  decision  is  not 
final,15  nor  is  it,  under  similar  conditions  when  the  claim 
is  that  of  American  citizenship  in  the  alien  ;16  and  the  fact 
that  the  alien  claiming  the  right  to  admission  as  a citizen 
of  this  country  is  suffering  with  trachoma,  a dangerous, 
contagious  disease,  does  not  render  him  subject  to  ex- 
clusion without  recourse  to  the  courts  on  the  finding  of 
the  board  of  special  inquiry  that  he  is  thus  afflicted,  al- 
though the  act  provides  that  the  decision  of  the  board  is 
final  in  such  cases  and  no  appeal  lies  to  the  Secretary  of 
Commerce  and  Labor.17  If  a person  is  a citizen  he  is,  as 
such,  whether  or  not  suffering  from  any  disease,  beyond  the 

13 In  re  Can  Pon,  168  Fed.  479. 

re  Di  Simone,  108  Fed.  942,  reversed  on  confession  of  error;  United 
States  v.  Jin  Fung,  100  Fed.  389. 
isEx  parte  Ow  Guen,  148  Fed.  926. 
i6United  States  v.  Rodgers,  144  Fed.  711. 
i7United  States  v.  Nakashima,  160  Fed.  842. 


518  The  Exclusion  and  Expulsion  of  Aliens. 


jurisdiction  of  the  department  to  exclude,  and  a decision 
in  which  the  claim  of  citizenship  is  passed  over  or  ignored 
overlooks  the  preliminary  question  of  whether  executive 
officers  have  jurisdiction  to  pass  on  the  applicant’s  case. 

A hearing  cannot  be  said  to  be  either  unfair  or  unlawful 
merely  because  in  a given  case  the  excluding  decision  has 
been  rendered  by  the  Assistant  Secretary  of  Commerce 
and  Labor  instead  of  the  Secretary  in  person;5 * * * * * * * * * * * * 18  but  it  has 
been  held,  however,  that  an  excluding  decision  rendered 
by  a board  of  special  inquiry  composed  of  members  one 
of  whom  was  the  inspector  who  referred  the  case  to  the 
board  as  provided  by  section  24  of  the  existing  law,  being 
in  doubt  as  to  the  eligibility  of  the  alien  to  land,  cannot 
be  binding  on  the  courts,  inasmuch  as  the  hearing  before 
the  board  thus  composed  could  not  constitute  the  “fair 
hearing”  which  the  law  requires.19 

5.  The  Departmental  Finding  Must  Constitute  a Bona 
Fide  “Decision” 

That  the  facts  as  found  by  the  executive  officers  cannot 

be  appealed  to  or  examined  by  the  courts  has  been  too 

often  authoritatively  asserted  to  warrant  more  than  pass- 

ing mention.  Still,  in  providing  that  the  executive  find- 

ing is  final  it  cannot  be  denied  that  Congress  assumes  that 

an  actual  decision  shall  have  been  rendered,  that  such 

decision  shall  be  the  result  of  a fair  hearing,  and  that 

the  executive  officer  shall  not  act  arbitrarily  or  abuse  the 
powers  conferred  upon  him.  The  result  reached  by  the 

officer  must  partake  of  the  nature  of  a decision,  and  the 

term  itself  necessarily  implies  the  consideration  of  the 

facts  presented  pro  and  contra,  in  deciding  which  of  the 

two  groups  represents  the  actual  conditions.  This  seems 
to  have  been  the  view  taken  by  the  court  in  the  case  of 

is  In  re  Jem  Yuen,  188  Fed.  350;  and  see  In  re  Way  Tai,  96  Fed.  484; 
Tang  Tun  v.  Edsell,  223  U.  S.  673,  56  Law  Ed. . 

isUnited  States  v.  Redfern,  180  Fed.  500. 


Judicial  Review  of  Administrative  Decisions.  519 


United  States  v.  Wong  Chung,20  which  presented  that  of  a 
Chinese  alien  seeking  admission  to  the  United  States  who 
offered  as  evidence  of  his  right  to  enter  a “section  6” 
certificate  complying  in  all  respects  with  the  law.  The 
deputy  collector  refused  to  allow  him  to  enter  on  the  sole 
ground  of  a mere  rumor  reported  to  him  by  a person  who 
had  obtained  it  from  a third  party  on  hearsay  only  that 
the  applicant  “was  going  to  a laundry.”  The  court  held 
that  the  alleged  “decision”  was  not  such  as  was  contem- 
plated by  the  statutes  and  that  it  was  binding  neither  on 
the  United  States  commissioner  nor  on  the  courts  before 
whom  the  applicant  was  subsequently  brought  on  appeal 
on  the  charge  of  being  unlawfully  in  the  United  States. 
This  decision  has  the  support  of  later  cases  which  hold 
that  the  courts  have  jurisdiction  in  habeas  corpus  when  it 
appears  that  the  evidence  taken  in  deportation  proceed- 
ings is  absolutely  uncontradicted  and  establishes  as  a mat- 
ter of  law  that  the  case  is  not  within  the  statute  ;21  or  when 
there  is  no  evidence  whatsoever  to  support  the  excluding 
decision.22  Thus  where  an  alien  has  been  excluded  from 
admission  by  the  board  of  special  inquiry  on  the  finding 
that  he  was  likely  to  become  a public  charge,  and  the  facts 
showed  that  he  had  a recognized  profession  and  property 
valued  at  several  thousand  dollars,  some  of  which  con- 
sisted of  diamonds  and  jewelry  given  an  appraised  value 
of  f 640,  and  in  addition  thereto  had  offers  of  employment 
in  this  country  from  reputable  residents  it  was  held  that 
there  was  no  evidence  which  could  justify  such  a finding.23 

The  courts,  however,  are  slow  to  reach  the  conclusion 
that  the  facts  presented  to  administrative  officers  are  not 

2092  Fed.  141. 

21Ex  parte  Petterson,  166  Fed.  536  (obiter). 

22Ex  parte  Saraceno,  182  Fed.  955;  United  States  v.  Williams,  175  Fed. 
274. 

23United  States  v.  Williams,  189  Fed.  915;  nor  was  there  held  to  con- 
stitute any  evidence  in  law  to  the  effect  that  an  alien  woman  was  likely 
t)  become  a public  charge,  where,  after  being  induced  by  a false  offer  of 
marriage  to  accompany  a foreigner  to  this  country  it  was  shown  that  she 


520  The  Exclusion  and  Expulsion  of  Aliens. 


such  as  to  afford  any  evidence  to  support  the  administra- 
tive finding  and  thereby  deprive  the  ultimate  finding  of 
all  validity  on  the  ground  that  it  did  not  constitute  a 
“decision.”  Indeed,  in  a recent  case,24  where  the  right  of 
the  petitioner  to  remain  was  alleged  to  consist  in  Amer- 
ican citizenship  acquired  by  her  marriage  to  a citizen  of 
this  country  and  supported  by  an  unimpeached  marriage 
certificate,  the  court  refused  to  grant  her  relief  in  habeas 
corpus  in  spite  of  the  circumstance  that  the  certificate, 
together  with  other  facts,  pointed  strongly  to  the  existence 
of  the  marital  relationship ; all  of  which  had  been  submit- 
ted to  the  examining  officer.  There  was,  however,  a strong 
dissent  expressing  the  view  that  the  circumstances  were 
such  as  to  preclude  the  existence  of  a fair  hearing,  par- 
ticularly where  as  in  this  case,  the  examining  officer  had 
stated  that  even  if  he  had  been  convinced  that  the  certifi- 
cate was  not  colorable  he  would  have  passed  unfavorably 
on  the  petitioner’s  case.  And  relief  has  been  refused  even 
where  the  marriage  was  shown  to  have  actually  existed  and 
the  fact  was  not  even  contradicted  by  the  government.25 

The  effect  of  marriage  in  its  application  to  the  status 
of  the  parties  under  the  immigration  acts  has  already  been 
discussed.26  The  view  of  the  majority  of  the  court  in  the 
Sprung  case — in  holding  that  the  marriage  certificate 
might  in  connection  with  all  remaining  circumstances  be 
disregarded  without  rendering  the  executive  finding  sub- 
ject to  being  upset  on  the  charge  of  unfairness — certainly 
seems  open  to  criticism.  Granting  that  it  is  within  the 
power  of  executive  officers  to  determine  whether  the  par- 
ties coming  before  them  and  presenting  what  is  the  equiva- 

forsook  him  and  was  successful  in  a breach  of  promise  suit  later  brought 
against  him,  that  she  was  26  years  old,  followed  the  occupation  of  nursing, 
had  secured  a substantial  judgment  against  the  defendant,  had  funds  and 
friends  here,  and  that  there  was  no  indication  whatever  that  she  was  likely 
to  become  a public  charge.  United  States  v.  Martin,  193  Fed.  795. 

24United  States  v.  Sprung,  187  Fed.  903. 

25 Ex  parte  Kaprielian,  188  Fed.  694. 

26Chapter  on  Status,  ante,  p.  403  et  seq. 


Judicial  Review  of  Administrative  Decisions.  521 

lent  of  at  least  prima  facie  proof  of  the  existence  of  the 
facts  on  which  their  right  to  enter  or  remain  in  the  United 
States  is  based  are  actually  the  parties  to  whom  the  docu- 
ments— whether  certificates  of  marriage,  naturalization, 
or  certificates  issued  under  the  Chinese  exclusion  laws — 
were  originally  issued,  it  is  equally  true  that  whrle  such 
a document  may  be  overcome  by  proper  evidence  its  legal 
effects  should  not  be  destroyed  in  the  absence  of  positive 
and  competent  evidence.27  It  may  be  that  in  such  cases 
the  executive  officer,  for  reasons  which  appeal  to  him,  is  not 
satisfied  that  the  documents  are  genuine,  or  that  the  par- 
ties presenting  them  are  those  described  therein,  or 
that  the  status  which  those  documents  purport  to  confer 
exists.  But  it  will  not  do  for  him  to  make  even  genuine 
suspicion  the  sole  basis  of  an  unfavorable  decision — and 
if  he  does  the  courts  should  not  shrink  from  the  responsi- 
bility of  passing  on  the  facts.  It  seems  unreasonable,  to 
say  the  least,  to  give  less  credit  to  an  instrument  of  such 
solemn  and  authoritative  import  as  a marriage  certificate 
than  to  a certificate  of  residence  issued  under  the  exclusion 
acts.  And  in  this  connection  it  may  be  said  that  it  has 
been  held  recently  that  the  courts  will  intervene  where  a 
Chinese  person  has  received  a certified  copy  of  the  judg- 
ment of  a United  States  Commissioner  that  he  is  an  Amer- 
ican citizen  where,  on  his  return  from  a trip  abroad,  un- 
dertaken with  the  permission  of  the  Department  of  Com- 
merce and  Labor,  the  immigration  officers  on  his  return 
refused  to  give  such  certificate  full  force  and  effect,  merely 
because  there  was  evidence  of  erasure  on  the  document, 
but  no  proof  that  it  had  been  made  by  the  applicant; 
and  that  to  exclude  him  as  the  result  of  slight  discrep- 
ancies easily  explained  was,  under  the  circumstances,  to 
deny  him  a fair  hearing,  since  “the  refusal  to  permit  him 

27Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888;  Lew 
Quen  Wo  v.  United  States,  184  Fed.  685;  In  re  Tom  Hon,  149  Fed.  842; 
In  re  See  Ho  How,  101  Fed.  115. 


522  The  Exclusion  and  Expulsion  of  Aliens. 


to  return  had  no  tangible  basis  on  which  to  rest  and  was 
without  authority  of  law.”  28 

The  fact  already  adverted  to29  that  departmental  officers 
must  examine  and  pass  upon  all  the  evidence  before  them 
must  not  be  taken  to  mean  that  because  they  are  under 
the  obligation  of  examining  all  the  testimony  introduced 
at  a hearing  they  are  not,  within  the  limits  stated,  at  lib- 
erty to  give  no  credence  to  any  part  thereof  which  may  ap- 
pear to  them  to  be  entitled  to  no  weight.  Their  duty 
is  done  and  their  word  is  final,  except  insofar  as  the  alien 
may  take  advantage  of  an  administrative  appeal,  once  they 
give  the  alleged  facts  presented  their  fair  and  full  con- 

28United  States  v.  Chin  Len,  187  Fed.  544;  but  see  In  re  Sue  Yen  Hoon, 
2 U.  S.  D.  Ct.  Hawaii  606,  where  the  court  held  that  the  departmental 
officer  was  not  bound  to  admit  a Chinese  applicant  for  admission  who  pre- 
sented are  apparently  valid  and  duly  issued  certificate  of  his  birth  in  the 
islands.  It  was  here  contended  that  the  inspector  did  not  accord  these 
certificates  their  proper  legal  effect,  but  the  court  said  that  since  the  peti- 
tion showed  that  hearing  was  had  and  did  not  claim  that  the  inspector  re- 
fused to  hear  any  evidence  the  petitioner  had  to  offer,  or  that  all  the  evi- 
dence was  not  sent  up  on  appeal,  the  court  could  not  review  the  finding  that 
the  petitioner  was  not,  in  fact,  born  in  Hawaii.  The  court  apparently  took 
the  view  that  in  the  absence  of  a law  which  stated  that  such  certificates 
should  constitute  prima  facie  evidence  of  birth  in  Hawaii  which  could 
not  be  overcome  except  by  positive  testimony  to  the  contrary,  they  would 
be  given  no  more  force  than  any  other  proper  allegation  of  the  applicant’s 
birth  in  the  Hawaiian  Islands,  oral  or  otherwise,  which  the  inspector  might 
believe  or  not,  as  he  chose.  Even  in  the  absence  of  any  such  special  pro- 
vision, it  certainly  seems  that  such  certificates,  constituting  as  they  do 
written  evidence  of  the  existence  of  the  fact,  made  at  the  time  of  its  occur- 
rence, should  be  given  in  deportation  cases,  the  same  significance  which  any 
other  apparently  genuine  official  document  is  given  under  the  common 
law.  It  hardly  seems  equitable  to  hold  that,  as  this  same  court  did  in  a 
previous  case,  it  was  to  be  presumed  that  all  births  were  recorded  in  the 
Hawaiian  Islands  because  the  law  penalized  the  failure  to  so  record  them, 
and  to  base  the  refusal  to  admit  an  alien  who  claimed  birth  in  Hawaii 
on  the  fact  that  there  was  no  record  of  such  birth  and,  on  the  other  hand, 
to  hold  that  such  records,  when  presented  as  proof  of  such  birth,  do  not 
give  rise  to  a presumption  of  such  birth  which  requires  positive  and  direct 
testimony  for  its  rebuttal.  It  seems  clear  that  failure  to  accord  such 
a document  its  proper  value  might  result  in  an  unfair  hearing,  and  that 
the  question  might  be  well  considered  by  the  court  on  this  ground. 

2 9Jnte,  p.  517. 


Judicial  Review  of  Administrative  Decisions.  523 


sideration.  Thus  the  fact  that  the  board’s  decision  is 
based  on  the  personal  appearance  and  the  characteristics 
of  the  alien  as  revealed  at  his  examination  will  not  throw 
the  executive  findings  open  to  judicial  review  merely  be- 
cause the  board  in  its  decision  placed  no  weight  whatso- 
ever on  the  testimony  given  by  the  applicant  or  his  friends, 
and  because  his  personal  characteristics,  actions  and  ap- 
pearance alone  appeared  to  them  to  justify  an  excluding 
decision.30 

The  decisions  above  cited  in  which  the  courts  have  re- 
viewed the  administrative  findings  of  fact  on  the  ground 
that  there  was  no  evidence  to  support  them  cannot,  of 
course,  be  considered  as  holding  that  the  courts  can  ques- 
the  mere  correctness  or  incorrectness  of  the  departmental 
officer’s  finding  of  facts,  for  it  is  well  settled  that  they 
have  no  such  power;31  and  the  fact  that  a court  may  be 
of  the  opinion  that  there  was  sufficient  evidence  to  war- 
rant a finding  the  other  way  will  not  justify  it  in  assuming 
jurisdiction.32 

The  jurisdiction  of  the  courts  to  review  the  evidence  has 
thus  been  stated:  “This  court  can  only  examine  the  evi- 
dence to  see:  (1)  Was  a full  and  fair  and  unbiased  hear- 
ing had?  (2)  Was  the  decision  based  on  such  a state  of 
facts  that  a question  of  fact  was  presented  for  the  decision 
of  the  inspector?  or  (3)  was  the  evidence  conclusive  as  a 
matter  of  law  so  that  the  decision,  affirmed  by  the  Depart- 
ment of  Commerce  and  Labor  was  arbitrary  and  unwar- 
ranted?” 33 

The  right  of  the  courts  to  interfere  in  such  cases  can 
only  (and  it  would  seem  correctly)  be  supported  on  the 
principle  that  an  executive  order  of  deportation,  not  based 
on  any  facts  which  tend  to  show  that  the  person  to  be  de- 

30United  States  v.  Williams,  190  Fed.  897. 

siCliin  Yow  y.  United  States,  208  U.  S.  8,  52  Law  Ed.  369. 

32CMn  Yow  v.  United  States,  supra;  United  States  v.  Williams,  supra ; 
Ex  parte  Lee  Kow,  161  Fed.  592. 

33 Ex  parte  Long  Lock,  173  Fed.  208. 


524  The  Exclusion  and  Expulsion  of  Aliens. 


ported  is  excludable  under  the  exclusion  or  immigration 
acts  is,  aside  from  wanting  the  elements  of  a decision,  nec- 
essarily arbitrary,34  and,  if  arbitrary,  cannot  be  said  to  be 
be  the  result  of  a fair  hearing.35 

6.  Abuse  of  Authority. 

It  is  not  every  abuse  of  authority  on  the  part  of  the 
immigration  officials  that  will  result  in  giving  the  alien 
who  has  been  subjected  thereto  a right  to  turn  to  the 
courts  for  relief.  Officers  may  in  the  course  of  the  pro- 
ceedings commit  acts  of  themselves  improper,  and  in  no 
wise  authorized  either  by  statutory  provisions  or  depart- 
mental regulations — but,  provided  that  the  result  of  these 
abuses  is  not  to  deprive  the  alien  of  a fair  hearing,  it  is 
hard  to  see  how  their  commission  can  affect  the  right  of 
the  Government  to  deport,  or  enlarge  the  scope  of  the 
relief  which  the  alien  may  claim  as  a matter  of  right  be- 
yqnd  that  provided  by  the  purely  administrative  procedure 
which  the  law  has  prescribed  to  meet  his  case.  The  mere 
fact  that  an  alien  has  been  roughly  or  unfairly  treated 
pending  detention  for  examination  does  not  necessarily 
mean  that  he  is  deprived  of  a fair  hearing;  at  the  same 
time,  if  as  the  direct  result  of  such  treatment  he  were 
prevented  from  testifying  or  from  testifying  as  fully  as  he 
otherwise  might  have  done;  or  if  by  threats  or  intimida- 
tion he  were  prevented  from  availing  himself  of  any  right 
necessarily  incident  to  a fair  hearing,  or  which  by  law 

3 

35But  see  contra  Glavis  v.  Williams,  190  Fed.  686,  where  the  court 
disclaimed  the  power  to  examine  the  question  of  whether  there  was  any 
evidence  at  all  on  which  the  Secretary  of  Commerce  and  Labor  could  base 
his  decision  of  expulsion.  This  view  is,  however,  decidedly  against  the 
weight  of  authority.  At  an  early  date  in  the  history  of  the  exclusion  and 
immigration  acts  it  was  held  that  the  finality  of  the  collector’s  decision 
depended  upon  whether  the  evidence  on  which  an  excluding  decision  was 
based  constituted  competent  evidence  of  the  facts  as  found  by  the  col- 
lector and  on  which  he  attempted  to  justify  his  decision.  In  re  Cummings, 
32  Fed.  75. 


Judicial  Review  of  Administrative  Decisions.  525 

or  regulation  he  is  entitled  to  exercise,  the  hearing  itself 
would  be  tainted ; and  if  tainted  undoubtedly  he  would  be 
entitled  to  seek  and  obtain  his  relief  in  the  courts. 

In  the  case  of  Lee  Gon  Yung  v.  United  States,36  a 
Chinese  person  seeking  admission  for  purposes,  it  was  al- 
leged, of  transit,  was  prohibited  from  entering  by  the  im- 
migration authorities  and  held  for  deportation  to  China. 
He  applied  for  a writ  of  habeas  corpus ; which  was  denied, 
whereupon  the  petitioner  appealed.  The  petition  stated 
that  upon  his  arrival  he  was  examined  by  a customs  in- 
spector, his  baggage  and  private  papers  opened,  and  his 
person  searched.  The  Supreme  Court  upheld  the  jurisdic- 
tion of  the  collector  to  detain  the  petitioner  for  deporta- 
tion under  the  circumstances,  stating  that  if  the  petitioner 
had  just  cause  of  complaint  of  the  conduct  of  the  collector’s 
subordinates  the  remedy  was  not  to  be  found  in  his  dis- 
charge on  habeas  corpus;  in  other  words,  that  the  fact  that 
the  customs  inspector  might  have  violated  the  constitu- 
tional provision  against  unlawful  searches  and  seizures 
did  not  go  to  the  jurisdiction  of  the  collector  to  deport  an 
alien  found  by  him  not  to  be  entitled  to  enter  this  coun- 
try. The  Supreme  Court  had,  moreover,  held  in  the  case 
of  Fong  Yue  Ting,37  that  the  constitutional  guarantee 
against  unlawful  searches  and  seizures  had  no  application 
to  the  immigration  acts. 

In  the  case  of  Yamataya  v.  Fisher,38  the  contention  was 
made  that  the  alien,  who  had  been  arrested  for  deporta- 
tion within  one  year  of  her  entry  by  authority  of  the  Act 
of  October  19,  1888,  had  been  given  only  a pretended  hear- 
ing by  the  departmental  officers  touching  her  right  to  re- 
main, it  being  alleged  that  the  petitioner  had  no  know- 
ledge of  the  English  language  and  that  as  to  her  there  was 
no  fair  hearing.  But  the  Supreme  Court  held  that  these 

36185  U.  S.  306,  46  Law  Ed.  921;  Fok  Young  Yo  v.  United  States,  185 
U.  S.  296,  46  Law  Ed.  917. 

37Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

38189  U.  S.  86,  47  Law  Ed.  721. 


52G  The  Exclusion  and  Expulsion  of  Aliens. 

were  considerations  which  should  have  been  presented  to 
the  departmental  officers  primarily  in  charge  of  the  case, 
or  on  appeal  to  the  Secretary  of  the  Treasury,  and  that 
failure  to  do  so  would  not  justify  the  intervention  of  the 
courts.  “It  is  not  to  be  presumed,”  said  the  court,  “that 
either  would  have  refused  a second  or  fuller  investigation, 
if  a proper  application  and  showing  for  one  had  been 
made  by  the  appellant.”  * * * “And  as  no  appeal  was 
taken  to  the  Secretary  from  the  decision  of  the  immigration 
inspector  that  decision  was  final  and  conclusive.  If  the  ap- 
pellant’s want  of  knowledge  of  the  English  language  put 
her  at  some  disadvantage  in  the  investigation  conducted 
by  that  officer,  that  was  her  misfortune  and  constitutes  no 
reason  under  the  acts  of  Congress  or  under  any  rule  of  law 
for  the  intervention  of  the  court  by  habeas  corpus”  The 
court  obviously  entertained  some  doubt  as  to  the  sincerity 
of  the  claim  of  lack  of  knowledge  of  the  English  language ; 
particularly  since  the  petitioner  had  not  apparently  suf- 
ficient faith  in  its  efficacy  to  encourage  her  to  present  it  as 
the  basis  of  the  administrative  appeal  provided  by  law. 
The  decision  stands  unequivocally  for  the  principle  that 
a hearing  is  not  pretended  merely  because  the  alien  has  no 
knowledge  of  the  English  tongue.  To  maintain  the  con- 
trary would  be  tantamount  to  declaring  that  no  alien 
seeking  the  benefit  of  our  institutions  could  be  deported 
under  the  law  except  after  an  examination  conducted  in 
the  language  of  his  country  of  origin — a contention  mani- 
festly absurd.  But  it  would  be  equally  unreasonable  to 
suppose  that  the  court  meant  by  its  language  to  convey 
the  idea  that  a hearing  would  be  fair  which  was  limited 
to  proceedings  of  the  nature  of  which  neither  the  alien 
nor  his  representative  had  any  understanding,  or  where, 
in  the  absence  of  such  understanding  on  the  part  of  the 
alien  himself,  or  in  the  absence  of  representation  depart- 
mental officers  should  take  advantage  of  the  alien’s  un- 
fortunate situation  to  render  an  excluding  decision.  Such 
a contingency  is,  however,  most  unlikely  to  occur ; and  it 


Judicial  Review  of  Administrative  Decisions.  527 

must  furthermore  be  borne  in  mind  that  the  examining 
officers  are  not,  as  a matter  of  law,  bound  to  go  further 
in  their  investigation  than  the  appearance,  behavior  and 
characteristics  of  the  alien  himself — at  least  in  the  case 
of  aliens  seeking  admission.  In  the  case  of  foreigners 
arrested  within  the  country  for  deportation  the  provision 
that  they  may  have  the  assistance  of  counsel  would  nec- 
essarily involve  the  consideration  of  other  proofs  by  the 
examining  officer. 

It  is  thought  that  the  principles  enunciated  in  the 
Yamataya  case39  and  later  cases  of  the  United  States  Su- 
preme Court40  have  not  been  always  altogether  correctly 
interpreted  by  the  lower  Federal  courts.  “This  court,” 
says  Mr.  Justice  Harlan  in  the  Yamataya  case,  “has 
never  held,  nor  must  we  now  be  understood  as  holding 
that  executive  officers,  when  executing  the  provisions  of  a 
statute  involving  the  liberty  of  persons  may  disregard  the 
fundamental  principles  that  inhere  in  due  process  of  law. 
It  is  not  competent  for any  executive  offi- 
cer  arbitrarily  to  cause  an  alien  to  be de- 

ported without  giving  him  all  opportunity  to  be  heard 
upon  the  questions  involving  his  right  to  be  and  remain 
in  the  United  States.  No  such  arbitrary  power  can  exist 
where  the  principles  involved  in  due  process  of  law  are 
recognized.” 

In  the  case  of  Glavas  v.  Williams41  it  appears  from  the 
somewhat  meager  statement  of  facts  reported  that  an 
alien  was  arrested  by  the  immigration  authorities  on  the 
charge  of  being  unlawfully  here,  and  held  for  deportation. 
It  seems  that  one  of  the  grounds  on  which  his  unlawful 
presence  was  predicated  was  that  he  had  admitted  the 
commission  of  a crime  involving  moral  turpitude.  The 
affidavit  presented  by  the  petitioner  after  the  return  of  the 

39Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 

4°Gonzales  v.  Williams,  192  U.  S.  1,  48  Fed.  317 ; Chin  Yow  v.  United 
States,  208  U.  S.  8,  52  Law  Ed.  369. 

41190  Fed.  686. 


528  The  Exclusion  and  Expulsion  of  Aliens. 

writ  stated  that  the  admission  was  obtained  through  ply- 
ing him  with  liquor,  and  by  means  of  threats.  But  this,  said 
the  court,  was  wholly  a question  of  fact  for  the  executive 
authorities  with  whose  decision  the  court  would  have  no 
right  to  interfere,  had  any  such  evidence  been  presented. 
The  charge  that  the  admission  had  been  obtained  in  this 
way  appeared  for  the  first  time  in  the  court  proceedings.  It 
seems  plain  that,  granting  that  the  admission  was  ob- 
tained by  unjust  or  unlawful  methods  the  obtaining  of 
such  admission  constituted  no  part  of  the  hearing.  The  pro- 
ceeding before  the  officer  authorized  to  determine  whether 
the  alien  had  the  right  to  remain  afforded  the  opportunity 
provided  by  law  whereby  the  prisoner  might  attempt  to 
show,  if  he  so  chose,  that  the  statement  was  unlawfully 
obtained,  and  might  or  might  not  substantiate  the  charge. 
This,  by  his  silence,  he  refused  to  do,  under  the  impression 
that  he  could  reserve  this  defense  for  a later  occasion. 
This  was  no  more  or  less  than  an  attempt  to  obtain  a ju- 
dicial determination  of  a question  of  fact  which  the  law 
reserves  for  the  consideration  of  departmental  authori- 
ties ; and,  as  was  decided  in  the  Ju  Toy  case,42  was  destined 
to  failure.  But  the  court  proceeds : 43  “Nor  do  I under- 
stand that  even  an  abuse  of  authority  is  reviewable  pro- 
vided that  a hearing  be  given,  and  certain  elementary  pro- 
cedural rights  are  observed  in  form.”  The  court  inter- 
preted the  Yamataya  case  “as  meaning  that  abuse  of  their 
powers  by  the  authorities  is  a matter  only  of  executive 
discipline  provided  that  the  requisite  forms  are  not  vio- 
lated   It  becomes  unnecessary  to  determine 

whether  the  admission  of  having  committed  a crime  in- 
volving moral  turpitude  mentioned  in  section  2 of  the  act 
must  take  place  at  the  time  of  the  hearing  or  may  occur 
before.  It  also  renders  unnecessary  a determination 
whether  the  admission  actually  made  upon  the  hearing 

42United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 

43p.  687. 


Judicial  Review  of  Administrative  Decisions.  529 

by  the  relator  was  an  admission  of  the  commission  of  such 
a crime.” 

It  is  difficult  to  concede  the  correctness  of  this  reason- 
ing. As  before  stated  if  the  charge  made  at  the  hearing 
was  that  the  alien  had  made  a statement  which,  if  consti- 
tuting an  admission,  would  render  him  subject  to  deporta- 
tion it  was  one  for  him  to  refute  at  the  time  of  the  hearing, 
and  was  thus  a question  of  fact  for  the  departmental  offi- 
cers’ exclusive  determination.  If  it  was  found  as  a matter 
of  fact  that  the  statement  was  the  result  of  threats  or 
abuse,  whether  or  not  it  constituted  an  admission  as  a 
question  of  law  was  also  within  their  jurisdiction  to  de- 
cide; but  their  conclusion  of  law  would  be  open  to  judicial 
review.  But,  if  the  alleged  admission  was  made  at  the 
hearing  itself,  as  the  result  of  threats  or  intimidation  or 
other  unlawful  or  unfair  acts  on  the  part  of  the  presiding 
officer  or  his  subordinates  how  could  it  be  contended  in 
the  face  of  numerous  decisions  by  the  highest  Federal  tri- 
bunal that  the  courts  would  be  powerless  to  correct  such 
abuses  of  authority?  The  fact  is  that  abuse  of  authority 
at  the  hearing  which  takes  the  form  of  producing  evidence 
for  the  Government  as  the  result  of  threats  or  intimida- 
tion directed  toward  the  witness  cannot  be  co-existent 
with  the  observance  of  certain  elementary  procedural 
rights  either  in  form  or  in  substance.  To  concede  the  ex- 
istence of  the  one  is  to  deny  the  observance  of  the  other. 
It  cannot,  it  is  thought,  be  successfully  denied  that  where 
an  alien  has  been  accorded  the  opportunity  to  call  wit- 
nesses, to  be  represented  by  counsel,  to  be  informed  of  the 
charge  against  him,  to  have  a hearing  before  a designated 
tribunal  and  a chance  to  present  his  side,  that  he  has  had 
a fair  hearing;  but  it  seems  equally  true  that  to  extract 
statements  from  him  at  that  hearing  by  means  of  threats, 
and  to  make  the  statements  thus  elicited  the  basis  of  the 
warrant  authorizing  his  deportation,  is  in  effect  to  deprive 
him  of  a full  chance  to  present  his  side  of  the  case,  since 
such  an  admission  must,  if  given  any  weight,  necessarily 


530  The  Exclusion  and  Expulsion  of  Aliens. 


destroy  the  effect  of  any  other  evidence  which  he  might 
produce. 

It  is  in  vain  that  we  may  search  the  Yamataya  decision44 
to  support  the  judicial  view  enunciated  in  this  case  to  the 
effect  that  if  the  admission  claimed  was  made  at  the  time 
of  the  hearing  and  obtained  by  the  adoption  of  the  meth- 
ods charged,  the  court  was  powerless  to  interfere.  There 
the  Supreme  Court  passed  on  the  point  as  to  whether  or 
not  the  hearing  was  “pretended,”  and  found  that  it  was 
not;  here  the  judge  denied  his  power  to  pass  on  the  ques- 
tion of  an  abuse  of  authority  even  if  alleged  to  have  taken 
place  at  the  hearing.  But  for  the  reasons  already  stated, 
it  is  thought  that  the  court  was  right  in  refusing  to  grant 
the  writ  requested,  since  it  appears  that  to  do  so  would 
have  been  to  pass  on  a fact  which  apparently  arose  before 
the  hearing  was  had,  was  not  a feature  of  the  proceedings 
and  was,  therefore,  within  the  exclusive  jurisdiction  of  de- 
partmental officers. 

7.  Questions  of  Law  and  Fact. 

The  principle  that,  by  virtue  of  the  Act  of  August  18, 
1894,  the  courts  cannot  pass  on  questions  of  fact,  but  are 
nevertheless  empowered  to  pass  upon  questions  of  law,  is 
easily  stated.  But  it  is  not  always  easy  to  distinguish 
a question  of  fact  from  a question  of  law 

(A.)  Whether  an  Alien  an  Immigrant  a Question  of 
Fact. 

The  question  arising  under  the  immigration  acts  of 
whether  or  not  an  alien  seeking  admission  was  an  immi- 
grant was  treated  as  a mixed  question  of  law  and  fact  on 
which  the  court  had  a right  to  pass.45  To  a certain  extent, 
however,  these  holdings  may  be  deemed  to  be  misleading. 
The  status  of  an  alien  seeking  admission  to  the  United 

44Yamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721. 

45 In  re  Di  Simone,  108  Fed.  942 ; United  States  v.  Burke,  99  Fed.  895. 


Judicial  Review  of  Administrative  Decisions.  531 

States — and  by  status  is  meant  no  more  or  less  than  the 
result  of  the  inspector’s  finding  of  fact — was,  even  prior 
to  the  Act  of  1894,  a condition  the  existence  of  which  did 
not  come  within  the  province  of  judicial  investigation  by 
re-examination  of  the  facts  on  which  the  inspector’s  find- 
ing was  based.  But  the  remedy  of  habeas  corpus  was  open 
to  any  alien  deprived  of  his  liberty  under  color  of  the  au- 
thority of  the  United  States,46  and  the  court  could  deter- 
mine whether  or  not  the  petitioner  was  deprived  of  any 
right  to  which  he  was  entitled  by  any  law  or  treaty. 

It  would  seem  that  in  the  present  state  of  the  law,  the 
courts,  when  passing  on  the  rights  of  aliens  to  enter  the 
country,  under  the  immigration  acts,  do  not  decide  a mixed 
question  of  law  and  fact;  that  they  are  restricted  to  the 
executive  officer’s  finding  of  fact,  and  on  those  facts  decide 
the  legal  effect  of  the  alien’s  status,  thereby  passing  on  the 
pure  question  of  law  as  to  whether  or  not  the  acts  in  ques- 
tion apply  to  the  alien.  It  is  true  that  several  of  the  Fed- 
eral decisions  rendered  on  this  point  appear  to  hold  that 
the  decision  of  the  Secretary  of  the  Treasury  was  neces- 
sarily binding  on  the  courts,  although  as  a matter  of  fact 
and  law  the  aliens  excluded  were  not  immigrants.47  But 
it  would  seem  that  if,  as  was  decided,  they  were  not  immi- 
grants as  a matter  of  law,  they  were  not  as  a matter  of 
law  subject  to  the  operation  of  an  act  held  to  apply  only 
to  immigrants.  But  whether  or  not  the  court  could  justly 
assume  jurisdiction  would  depend  on  whether  the  facts 
as  found  by  the  Secretary  showed  that  they  were  not  com- 
ing to  the  United  States  to  resume  a formerly  acquired 
and  unrelinquished  domicile. 

Reduced  to  its  lowest  terms  the  present  situation  of  the 
law  with  regard  to  questions  of  law  and  fact  seems  to  be 

46Ekiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146;  Lau  Ow  Bew 
v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340;  Wan  Shing  v.  United 
States,  140  U.  S.  424,  35  Law  Ed.  503;  United  States  v.  Jung  Ah  Lung, 
124  U.  S.  621,  31  Law  Ed.  591;  Chew  Heong  v.  United  States,  112  U.  S. 
536,  28  Law  Ed.  770. 

nin  re  Ota,  96  Fed.  487 ; In  re  Giovanna,  93  Fed.  659. 


532  The  Exclusion  and  Expulsion  of  Aliens. 

this : Where  the  alien  seeks  admission  to  the  United 
States  the  administrative  finding  as  to  what  class  of  aliens 
he  belongs,  based  on  the  classification  prescribed  by  the 
Chinese-exclusion  and  Immigration  laws  is  a pure  finding 
of  fact  and  is  absolute  and  final  on  the  point.  Until  this 
stage  is  reached  the  courts  are  powerless  to  disturb  such 
a finding  provided  that  the  hearing  has  been  fair.  Thus, 
if  the  Secretary  of  Commerce  and  Labor  finds  that  the  ap- 
plicant for  admission  is  an  immigrant — that  he  is  coming 
to  the  United  States  for  the  first  time  for  the  purpose  of 
making  this  country  his  home — the  case  can  proceed  no 
further,  for  there  is  no  question  of  law  for  the  courts  to 
consider. 

But  suppose  the  Departmental  findings  reveal  facts 
which  show  that  the  applicant,  although  an  alien,  is  not  an 
immigrant,  but  he  is  excluded  on  the  assumption  that  the 
Immigration  laws  apply  to  him.  The  administrative  rea- 
soning which  inspires  his  exclusion  involves  the  determi- 
nation of  no  fact  concerning  the  applicant  and  leads  to  no 
more  than  a simple  conclusion  of  law  reached  by  the  ap- 
propriate executive  officer.  Were  the  courts  to  pass  both 
on  whether  the  applicant  is  an  immigrant  and  on  whether, 
not  finding  him  to  be  such,  the  immigrant  laws  apply  to 
him  as  an  alien,  then  indeed  would  they,  in  passing  on  the 
whole,  be  considering  two  separate  questions,  the  first  a 
point  of  fact,  the  second  a point  of  law.  But  in  passing  on 
the  question  of  whether  the  immigration  laws  apply  to  an 
alien  who  is  frankly  admitted  by  the  administrative  offi- 
cers not  to  be  an  immigrant  the  only  point  which  the 
courts  have  to  consider,  or  which  they  have  the  right  to 
consider,  is  the  question  of  whether  the  immigration  acts 
apply — a pure  question  of  law. 

It  is  conceded  that  when  the  administrative  conclusion 
is  that  the  alien  is  an  immigrant  this  decision,  based  on  the 
facts  submitted  to  executive  officers  is  final,  as  far  as  the 
courts  are  concerned.  But  in  the  event  that  the  depart- 
ment finds  that  the  alien  is  domiciled  in  this  country  and 


Judicial  Beview  of  Administrative  Decisions.  533 

is  returning  to  resume  such  domicile  and  yet  concludes  on 
the  whole  that  he  is  an  immigrant  and  therefore  subject  to 
exclusion,  would,  the  case  end  there?  Obviously  not.  In 
order  to  constitute  a finding  of  fact  the  conclusion  reached 
must  be  the  logical  result  of  the  facts  revealed  by  the  in- 
quiry. The  personal  status  of  an  individual  seeking  ad- 
mission under  the  immigration  acts  is  a pure  question  of 
fact  to  be  determined  by  marshalling  the  various  facts 
^vhich  are  proven  to  exist  during  the  course  of  the  exami- 
nation and  which  are  found  to  be  true  by  the  officer  in 
charge.  The  departmental  finding  consists  of  the  sum  of 
these  facts — not  of  the  words  of  description  by  which  the 
officer  designates  them  as  a whole.  To  apply  the  term  “im- 
migrant” to  an  alien  who  is  found  not  to  be  coming  to  this 
country  to  make  it  his  home,  or  is  found  to  be  domiciled 
here,  would  be  as  gross  an  error  as  to  find  that  a foreigner 
is  of  Caucasian  blood  and  state  as  the  result  of  such  find- 
ing that  he  is  of  Chinese  descent.  In  case  an  alien  were 
excluded  from  admission  under  such  conditions  the  courts 
would  have  jurisdiction  to  review  the  departmental  ac- 
tion on  either  of  two  grounds:  first,  that  the  so-called 
“finding” — not  being  based  on  the  facts  as  found  by  the 
officer  constitutes  no  decision ; or,  second,  the  court,  ignor- 
ing the  wrong  words  of  description  as  utterly  immaterial 
would  pass  on  the  separate  question  of  law  as  to  whether, 
on  the  facts  as  found,  the  alien  was  subject  to  the  opera- 
tion of  the  immigration  laws. 

(B.)  Whether  Chinese  belong  to  Exempt  Classes  a Ques- 
tion of  Fact. 

Under  the  Chinese-exclusion  laws  departmental  officers 
had  always  had  the  right  prior  to  the  passage  of  the  Act  of 
1894  to  finally  pass  on  the  point  as  to  whether  an  alien 
seeking  admission  into  this  country  belonged  to  a particu- 
lar class  of  Chinese.  But  before  the  passage  of  that  act 
the  courts  had  always  exercised  the  power  of  considering 
whether  or  not  the  applicant  was  entitled  to  enter  under 


534  The  Exclusion  and  Expulsion  of  Aliens. 


any  law  or  treaty.  The  effect  of  the  Act  of  1894  was  to 
leave  the  administrative  finding  as  to  class  where  it  was 
before — beyond  the  reach  of  judicial  review — but  to  per- 
mit no  further  appeal  to  the  courts  merely  because  the 
contention  was  made  that  a right  secured  to  the  alien  by 
treaty  was  involved.  But  the  question  of  law  was  still 
necessarily  left  open  as  to  whether  or  not  a law  or  treaty 
applies  to  aliens  found  by  departmental  officers  to  belong 
to  a particular  class;  for  if  a foreigner  is  not  seeking  ad- 
mission by  virtue  of  a law  or  treaty  he  certainly  cannot 
be  excluded  as  attempting  to  enter  under  either.  Thus  the 
Supreme  Court  has  on  various  occasions  exercised  the 
right  of  passing  on  whether  the  immigration  act  applied 
to  certain  classes  of  persons  not  citizens  of  the  United 
States.48  The  question  of  whether  or  not  a Chinese  person 
seeking  admission  as  one  of  the  exempt  classes  is  seeking 
to  enter  under  any  law  or  treaty  cannot  arise,  since  no 
Chinese  person  can  enter  this  country  except  by  virtue  of 
the  laws  or  treaties  covering  the  subject ; consequently  the 
only  questions  on  which  departmental  officers  have  to  pass 
in  such  cases  are  necessarily  included  in  the  consideration 
of  facts  whereby  it  is  to  be  determined  whether  or  not  the 
applicant  belongs  to  one  of  the  exempt  classes. 

(C.)  Citizenship  a Question  of  Fact,  or  a Mixed  Question 
of  Law  and  Fact. 

Where  a person  seeks  admission  into  this  country  on 
the  ground  that  he  is  an  American  citizen  a different  situ- 
ation is  presented.  In  the  case  of  persons  of  Chinese  de- 
scent where  the  existence  of  the  political  status  claimed 
must  depend  on  one  fact  alone — that  of  birth  in  the  United 
States — it  has  been  decided  in  a multitude  of  cases  that 
the  question  of  American  citizenship  is  one  of  fact  the 
final  determination  of  which  is  vested  in  executive  offi- 

48Gonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317 ; Taylor  v. 
United  States,  207  U.  S.  120,  52  Law  Ed.  130. 


Judicial  Review  of  Administrative  Decisions.  535 


cers.49  But  where  such  determination  involves  a conclu- 
sion of  law  it  presents  a mixed  question  of  law  and  fact, 
and  the  departmental  finding  is  generally  held  to  be  sub- 
ject to  judicial  review.50 

(D.)  Other  Questions  of  Fact. 

Where  a Chinese  merchant  domiciled  in  the  United 
States  petitions  the  Court  in  habeas  corpus  on  behalf  of 
an  alleged  minor  son  detained  for  deportation  by  the  Im- 
migration authorities  the  question  of  whether  the  relation- 
ship exists  is  one  of  fact,  and  subject  to  final  determi- 
nation by  the  department  ;51  and  when  the  alleged  wife  and 
minor  children  of  a Chinese  merchant  seeking  admission 
into  the  United  States  under  the  laws  and  treaties  appli- 
cable to  Chinese  even  though  presenting  the  certificate  re- 
quired by  the  Act  of  1882,  are  refused  admission  the  courts 
will  not  interfere  in  habeas  corpus,  though  it  appears  that 
the  Collector  may  have  “disregarded”  the  contents  of  the 

49 Ju  Toy  v.  United  States,  198  U.  S.  253,  49  Law  Ed.  1040;  United 
States  v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917 ; In  re  Tang  Tun,  168 
Fed.  488;  Ex  parte  Lung  Wing  Wun,  161  Fed.  211;  Ex  parte  Jong  Jim 
Hong,  157  Fed.  447;  Wong  Sang  v.  United  States,  144  Fed.  968;  In  re 
Moy  Quong  Shing,  125  Fed.  641;  In  re  Sun  Yen  Hoon,  3 U.  S.  D.  Ct. 
Hawaii,  606;  Ngo  Ti  v.  Shuster,  7 Phil.  Rep.  355. 

soSee  De  Briuler  v.  Gallo,  184  Fed.  566.  For  decisions  on  the  acquisition 
of  American  citizenship  by  marriage  by  women  of  foreign  extraction  to 
American  citizens  or  by  the  naturalization  of  the  husband  see  Chapter  on 
Status,  ante,  p.  383. 

In  the  case  of  Lorenzo  v.  McCoy,  15  Phil.  Rep.  559  the  facts  as  found 
by  the  collector  of  customs  of  Manila  were  that  the  applicant  for  admission 
was  apparently  born  in  the  Philippines  in  1874,  of  a Chinese  father  and  a 
Filipina.  The  birth  was  out  of  wedlock.  In  *89  he  left  for  China  where 
he  remained  until  1908  when  he  returned  to  the  Philippines.  The  collector 
reached  the  conclusion  that  if  he  had  ever  been  a citizen  of  the  Philippines 
he  had  renounced  his  citizenship  by  his  absence.  This  conclusion  was 
treated  by  the  Court  as  deciding  no  more  than  a mere  question  of  fact,  and 
it  refused  to  grant  the  applicant  judicial  relief.  It  would  seem  that  the 
collector’s  decision  may  well  have  involved  a question  of  law.  The  Chief 
Justice  dissented. 

BiWong  Sang  v.  United  States,  144  Fed.  968;  ex  parte  Wong  Sang,  143 
Fed.  147;  in  re  Lee  Yee  Sing,  85  Fed.  635;  as  is  the  question  whether  the 
applicant  is  a minor.  Go  To  Sim  v.  McCoy,  16  Phil.  Reports  497. 


536  The  Exclusion  and  Expulsion  of  Aliens. 

certificate;52  nor  when  the  collector  finds  that  the  certifi- 
cate presented  by  the  alleged  wife  and  child  do  not  meet 
the  requirements  of  the  statute.63  The  “disregarding”  of 
the  certificate  in  the  case  above  cited  cannot  be  deemed 
equivalent  to  a refusal  to  consider  it.  As  stated  else- 
where54 certificates  of  identification  constitute  but  prima 
facia  evidence  of  the  proof  of  the  facts  therein  alleged,  and 
the  act  which  authorized  their  use  provided  specifically 
that  their  contents  might  be  controverted  by  the  Govern- 
ment. Moreover  the  Collector  found  as  a fact  that  the 
woman  was  a plural  wife  of  the  resident  merchant  al- 
though legally  married  to  him  in  China,  and  was  not  satis- 
fied that  the  child  was  his  legitimate  offspring.  Aside 
from  this  feature,  however,  the  administrative  officer  ex- 
cluded the  applicants  for  admission  under  laws  and  treat- 
ies of  the  United  States,  which  constituted  the  only  au- 
thority under  which  persons  of  their  nationality  could 
enter  at  all;  and  for  this  additional  reason  his  decision 
was  not  subject  to  judicial  review. 

Departmental  decisions  have  been  held  final  with  regard 
to  the  following  facts : The  identity  of  a Chinese  alien  pre- 
senting as  his  warrant  for  admission  a certificate  pur- 
porting to  have  been  issued  to  him  by  a United  States 
Commissioner  ;55  as  to  whether  an  alien  is  an  anarchist56  or 
is  afflicted  with  a loathsome  disease57  or  is  a public 
charge  ;58  and  the  writ  of  habeas  corpus  will  not  be  granted 
on  the  application  of  a Chinese  laborer  detained  for  de- 
portation by  the  Collector  of  Customs  on  a finding  that 

52Lee  Lung  v.  Patterson,  186  U.  S.  168,  46  Law  Ed.  1108;  and  see  in  re 
Yim  Quoek  Leung,  1 U.  S.  D.  Ct.  Hawaii,  166. 

53 in  re  Lee  Lung,  102  Fed.  132. 

54 Post,  p.  577. 

55 Ex  parte  Long  Lock,  173  F.ed.  208. 

56United  States  v.  Williams,  194  U.  S.  279,  48  Law  Ed.  979. 

57Pearson  v.  Williams,  202  U.  S.  281,  50  Law  Ed.  1029. 

ssGonzales  v.  Williams,  177  Fed.  689;  United  States  v.  Rogers,  65  Fed. 
787 ; United  States  v.  International  Marine  Company  et  al.,  194  Fed.  408. 


Judicial  Review  of  Administrative  Decisions.  537 

the  alien,  although  asserting  that  his  purpose  in  attempt- 
ing to  enter  the  United  States  is  to  exercise  the  right  of 
transit  accorded  members  of  that  class  by  Article  III  of 
the  Treaty  with  China  of  1894,  is  not  seeking  to  enter  for 
that  purpose.59  The  finding  that  the  person  seeking  ad- 
mission is  an  alien  is  final  although  he  possesses  a pass- 
port purporting  to  have  been  issued  to  him  by  the  Secre- 
tary of  State  of  the  United  States.60 

On  failure  to  perfect  the  appeal  allowed  by  law  from  an 
executive  finding  of  fact  to  the  proper  administrative  offi- 
cer— as  to  aliens  seeking  admission  to  the  country  the  Sec- 
retary of  Commerce  and  Labor — the  courts  will  refuse  to 
take  jurisdiction  on  habeas  corpus61  although  the  failure 
to  take  the  appeal  will  be  no  bar  to  the  relief  sought 
where  the  excluding  decision  of  a board  of  inquiry  is 
made  final  by  statute,  and  the  facts  show  that  the  board 
has  failed  to  pass  on  some  of  the  grounds  on  which  the 
right  to  enter  is  based,  and  where  the  act  is  held  not  to 
apply  to  the  petitioners.62 

D.  Finality  iof  Departmental  Decisions  as  to  the 
Right  to  Remain. 

The  act  of  March  3,  1903,  has  no  application  to  aliens 

59Fok  Young  Yo,  185  U.  S.  296,  46  Law  Ed.  917;  Lee  Gon  Yung  v. 
United  States,  185  U.  S.  306,  46  Law  Ed.  922;  in  re  Lee  Gon  Yung,  111 
Fed.  998. 

eoEdsell  v.  Mark,  179  Fed.  292. 

eiYamataya  v.  Fisher,  189  U.  S.  86,  47  Law  Ed.  721;  United  States  v. 
Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917 ; ex  parte  Chow  Chok,  161  Fed. 
627 ; ex  parte  Wong  Sang,  143  Fed.  147 ; Wong  Sang  v.  United  States,  144 
Fed.  968.  N.  B.  Where  the  court  refers  to  the  failure  of  the  alien  to  ap- 
peal in  the  case  of  Yamataya  v.  Fisher  the  word  appeal  is  used  in  a gen- 
eral rather  than  in  a technical  sense.  No  ‘‘appeal”  lies  in  deportation  pro- 
ceedings from  proceedings  held  subsequently  to  the  arrest  of  an  alien  alleged 
to  be  unlawfully  in  the  country.  He  is  arrested  by  order  of  a warrant 
issued  by  the  Secretary  of  Commerce  and  Labor  whose  deputy  presides 
over  the  proceedings.  The  Supreme  Court  points  out  that  the  Secretary 
had  the  power  to  grant  a second  hearing  should  he  choose  to  do  so. 

62United  States  v.  Nakashima,  160  Fed.  842. 


538  The  Exclusion  and  Expulsion  of  Aliens. 


lawfully  in  the  United  States,63  and  the  same  is  true  re- 
garding the  Act  of  February  20,  1907.  The  Act  of  1894 
making  administrative  decisions  final  is  in  terms  limited 
to  the  decisions  of  departmental  officers  not  reversed  on 
appeal  to  the  Secretary  of  the  Treasury  (now  the  Secre- 
tary of  Commerce  and  Labor),  which  operate  to  exclude 
aliens  from  admission  into  this  country.  Under  the  pres- 
ent act  the  boards  of  special  inquiry  are  the  administra- 
tive bodies  vested  with  the  power  to  pass  upon  the  ques- 
tion of  admissibility  regarding  aliens  under  that  law, 
and  the  decision  of  such  a board  is  by  section  10  specifi- 
cally made  final  in  the  cases  set  out  therein;  otherwise 
final  only  if  not  reversed  by  the  Secretary  on  appeal.64 

Under  the  Chinese  Exclusion  acts  jurisdiction  to  decide 
whether  aliens  once  admitted  to  the  United  States  are  en- 
titled to  remain  is  vested  in  United  States  Commissioners, 
an  appeal  on  the  facts  to  the  District  Court  of  the  United 
States  being  provided  by  law. 

Section  21  of  the  Immigration  act  provides  that  if  the 
Secretary  of  Commerce  and  Labor  is  satisfied  that  an 
alien  has  been  found  in  the  United  States  in  violation  of 
the  act,  or  that  the  alien  is  subject  to  deportation  under 
the  provisions  thereof  or  under  any  law  of  the  United 
States,  he  shall  cause  the  alien  within  three  years  after 
entry  to  be  deported ; but  the  act  contains  no  specific  pro- 
vision that  such  a finding  shall  be  final. 

In  a decision  rendered  under  the  Act  of  March  3,  1891, 
providing  for  the  return  of  aliens  who  had  been  found  to 
have  entered  this  country  unlawfully  it  was  held  that  the 
finding  of  the  Secretary  of  the  Treasury  to  that  effect  was 
final  and  not  subject  to  judicial  review;65  and  a later  de- 
cision rendered  when  the  same  statute  was  in  force  was  to 
the  effect  that  the  Secretary’s  finding,  not  being  in  terms 
made  final,  as  it  was  in  the  case  of  aliens  excluded  from 

63Frank  Waterhouse  & Co.  v.  United  States,  159  Fed.  876. 

6*Sec.  25. 

esUnited  States  v.  Arteago  et  al.;  68  Fed.  883. 


Judicial  Review  of  Administrative  Decisions.  539 

admission  to  the  United  States,  this  fact  did  not  affect  its 
validity  and  that  it  must  be  held  to  stand  until  reversed 
by  higher  authority.66  This  was  in  effect  to  hold  that  par- 
amount authority  existed,  and  that  to  that  extent  at  least 
the  Secretary’s  decision  was  not  final ; and  it  was  so  held, 
under  the  same  act,  regarding  the  right  of  a Chinese  per- 
son not  a laborer,  to  remain  in  the  United  States.67  In 
passing  upon  the  authority  of  the  Secretary  of  Commerce 
and  Labor  finally  to  decide  the  right  of  aliens  to  remain  in 
this  country  under  the  Act  of  March  3,  1903,  the  court 
held  that  where  an  alien  woman  was  arrested  under  the 
act  the  question  as  to  whether  she  entered  prior  to  the  act, 
and  was  thus  not  subject  to  its  provisions,  was  one  for  the 
court  to  consider  on  habeas  corpus  proceedings,  and 
which,  if  decided  in  the  affirmative  would  authorize  the 
discharge  of  the  petitioner.68 

Under  the  existing  law. 

Several  decisions  rendered  on  the  point  under  the  present 
act  hold  that  the  decision  of  the  Secretary  that  an 
alien  is  unlawfully  here  and  is  not  entitled  to  remain  is 
not  final,  but  is  subject  to  judicial  review.69  But  in  some 
of  the  above  cases  at  least  the  decision  was  based  on  the 
fact  that  as  a matter  of  law  the  parties  detained  for  de- 
portation were  not  included  within  the  operation  of  the 
act,  rather  than  turning  on  the  bare  question  of  the 
finality  of  the  Secretary’s  holding  regarding  the  right  of 
aliens  already  in  the  United  States  to  remain.70  The 

66United  States  v.  Yamasaka,  100  Fed.  404. 

67United  States  v.  Chin  Fee,  94  Fed.  828. 

68 in  re  Lea,  126  Fed.  234. 

69Redfern  v.  Halpert,  186  Fed.  150;  Davies  v.  Manolis,  179  Fed.  818; 
Botis  v.  Davies,  173  Fed.  996;  Frank  Waterhouse  & Co.  v.  United  States, 
159  Fed.  876;  and  see  Moy  Suey  v.  United  States,  147  Fed.  697;  Ex  parte 
Saraceno,  182  Fed.  955. 

ToDavies  v.  Manolis,  179  Fed.  818;  Botis  v.  Davies,  173  Fed.  996. 


540  The  Exclusion  and  Expulsion  of  Aliens. 

finality  of  the  departmental  decision  in  this  regard  has, 
however,  occasionally  been  squarely  upheld.71 

The  writ  will  be  granted  where  it  appears  that  during 
the  proceedings  terminating  with  the  issuance  of  the  Sec- 
retary’s warrant  of  deportation  of  aliens  charged  with 
conducting  a house  of  prostitution  they  were  persuaded 
through  intimidation  on  the  part  of  the  governmental  offi- 
cers not  to  employ  counsel  ;72  but  not  where  the  only  ground 
alleged  in  the  writ  is  that  the  board  of  special  inquiry 
had  decided  (when  they  applied  for  admission)  that  the 
petitioners,  subsequently  detained  for  deportation  within 
the  three  year  period,  were  lawfully  entitled  to  enter  the 
United  States;73  nor  where  an  alien  prostitute  based  her 
claim  to  remain  on  prior  residence  of  three  years  under  the 
act  of  February  20,  1907,  and  she  is  proceeded  against 
under  the  Act  of  March  26,  1910,  for  acts  committed  after 
that  time,  although  she  includes  in  the  petition  her  prior 
discharge  under  proceedings  instituted  under  the  Act  of 
1907, 74  as  neither  the  discharge  nor  the  favorable  finding 
by  the  board  of  special  inquiry  constitute  res  adjudicata. 
Nor  will  the  writ  be  granted  on  the  ground  that  the  peti- 
tioner, shown  to  have  entered  the  United  States  surrepti- 
tiously, is  in  the  United  States  in  violation  only  of  an  im- 
migration rule,  and  not  in  violation  of  the  Immigration 
Law  which  does  not  in  terms  prohibit  surreptitious 
entry,75  nor  where  the  petition  shows  that  the  petitioner, 
a woman  of  Chinese  descent,  formerly  admitted  on  a show- 
ing that  she  was  an  American  citizen,  is  later  arrested  for 
deportation,  where  copies  of  the  alleged  unlawful  process 
are  not  annexed  to  or  set  out  in  the  petition.76 

TiUnited  States  v.  Sprung,  187  Fed.  903;  and  see  Yamataya  v.  Fisher, 
189  U.  S.  86,  47  Law  Ed.  721;  in  re  Umeno,  3 U.  S.  D.  Ct.  Hawaii,  481; 
Prentis  v.  Di  Giacomo,  192  Fed.  467;  Prentis  v.  Stathakos,  192  Fed.  469. 

72United  States  v.  Williams,  185  Fed.  598. 

7sPearson  v.  Williams,  136  Fed.  734. 

74Sire  v.  Berkshire,  185  Fed.  967. 

75 Ex  parte  Hamaguchi,  161  Fed.  185. 

76Haw  Moy  v.  North,  183  Fed.  89. 


Judicial  Review  of  Administrative  Decisions.  541 

E.  Showing  Necessary  to  Entitle  Applicant  to  a 
Judicial  Hearing. 

In  the  case  of  United  States  v.  Ju  Toy77  and  in  the 
more  recent  case  of  Chin  Yow  v.  United  States78  the 
Supreme  Court  passed  on  the  nature  of  the  allegations 
which  the  petition  should  contain  in  order  to  give  the 
courts  the  right  to  grant  even  a preliminary  hearing  in 
habeas  corpus . 

The  Ju  Toy  case  came  up  on  a certificate  from  the  United 
States  Circuit  Court  of  Appeals  for  the  ninth  Circuit  pre- 
senting the  questions:  (1)  whether  habeas  corpus  should 
be  granted  in  behalf  of  a person  of  Chinese  descent  whose 
right  to  enter  the  United  States  has  been  denied  by  the  im- 
migration officers,  and  affirmed  on  appeal  by  the  Secretary 
of  Commerce  and  Labor,  and  citizenship  is  the  only 
ground  alleged  as  making  the  detention  unlawful,  and  (2) 
whether  under  such  circumstances  the  writ  should  be  dis- 
missed or  a further  hearing  be  granted,  and  (3)  whether 
the  decision  of  the  Secretary  of  Commerce  and  Labor  is 
conclusive,  in  the  absence  of  abuse  of  authority.  The  first 
question  was  answered  in  the  negative,  the  third  in  the 
affirmative,  and  the  second  by  stating  that  the  writ  should 
be  dismissed.79 

The  Court,  citing  the  Sing  Tuck  case  said : “ ‘A  peti- 
tion for  habeas  corpus  ought  not  to  be  entertained  unless 
the  court  is  satisfied  that  the  petitioner  can  make  out  at 
least  a prima  facie  case.’  This  petition  should  have  been 
denied  on  this  ground  irrespective  of  what  more  we  have 
to  say  because  it  alleged  nothing  except  citizenship.  It 
disclosed  neither  abuse  of  authority  nor  the  existence  of 
evidence  not  laid  before  the  Secretary.  It  did  not  even 
set  forth  that  evidence  or  allege  its  effect.” 

While  it  may  truly  be  said,  on  the  one  hand,  that  the  act 

77198  U.  S.  253,  49  Law  Ed.  1040. 

78208  U.  S.  8,  52  Law  Ed.  369. 

79Reporter,s  Statement. 


542  The  Exclusion  and  Expulsion  of  Aliens. 

of  1894  applies  only  to  aliens,  it  is  equally  true  that  the 
act  applies  to  all  aliens  irrespective  of  the  ground  on 
which  such  aliens  may  allege  the  right  to  enter;  and  if  it 
be  true  that  to  refuse  admission  to  a person  alleging  that 
he  is  an  American  citizen  may  in  fact  constitute  banish- 
ment in  the  particular  case,  it  is  equally  true  that  in  grant- 
ing a judicial  hearing  to  any  person  claiming  citizenship 
in  the  United  States,  such  person  may  as  a matter  of  fact 
be  an  alien,  and  the  provision  of  the  statute  would  thereby 
be  flatly  disregarded.  It  is  of  course  undeniable  that  if 
the  person  seeking  admission  is  a citizen  of  this  country, 
the  officer  is  without  jurisdiction  to  exclude  him  from  ad- 
mission, or  even  to  detain  him  for  examination  with 
knowledge  that  he  is  in  fact  such  citizen.  But  it  is  equally 
undeniable  that  this  absence  of  jurisdiction  cannot  be  held 
to  exist  as  a proven  fact,  until  the  fact  of  citizenship  is 
determined.  If  the  contrary  is  assumed — that  until  a per- 
son seeking  admission  is  proven  an  alien  the  immigration 
authorities  have  no  jurisdiction  at  all — then  the  very  fact 
of  granting  the  applicant  the  hearing  required  by  law 
would  be  dependent  for  its  validity  on  the  eventual  find- 
ing that  he  was  an  alien.  Had  the  law  provided  for  a pre- 
liminary hearing  by  some  special  tribunal  for  the  estab- 
lishment of  the  jurisdictional  fact,  the  case  would  be  other- 
wise; no  such  provision  existing,  however,  the  fact  of 
alienage  is  necessarily  left  to  the  determination  of  the  de- 
partmental officers  whose  decision  is  by  law  made  final  as 
to  the  right  of  the  alien  to  enter  under  any  law  or  treaty. 
Whether  or  not  a given  law  or  treaty  is  applicable  to  an 
alien  or  any  class  of  aliens  is  a question  for  the  Courts, 
not  the  administrative  officers,  to  decide.80  But  it  may  be 
said  if  the  courts  can  decide  whether  an  act  or  treaty  is 
applicable  to  a given  alien  or  any  special  class  of  aliens, 
with  all  the  more  reason  have  they  jurisdiction  to  point 
out  that  no  act  or  treaty  can  possibly  apply  to  an  Ameri- 

soGonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 


Judicial  Review  of  Administrative  Decisions.  543 

can  citizen,  and  to  release  him  on  habeas  corpus  on  that 
ground.  No  court  or  departmental  officer  has  ever  had 
the  temerity  to  deny  the  truth  of  this  proposition,  and  cer- 
tainly the  Ju  Toy81  case  cannot  be  cited  as  an  authority 
against  it.  The  facts  before  the  Supreme  Court  in  that 
case  were  simply  that  a person  had  presented  himself  to 
the  immigration  authorities  seeking  admission  into  this 
country  on  the  alleged  ground  of  American  citizenship; 
that  in  the  exercise  of  the  powers  conferred  on  those 
officers  by  Congress  they  found  that  this  person  was  an 
alien  and  a Chinese  alien  to  boot,  and  consequently  de- 
tained him  for  deportation  on  the  ground  that  he  did  not 
belong  to  a class  entitled  to  enter  the  United  States ; and 
that  the  applicant,  in  spite  of  the  administrative  finding 
of  fact  sought  judicial  relief  in  habeas  corpus  stating  in 
his  petition  as  the  sole  ground  for  such  relief  that  he  was 
a citizen  of  this  country,  thereby  requesting  the  Court  in 
effect  to  re-examine  the  facts  on  which  the  adverse  de- 
cision was  based,  and  to  thereby  exercise  a power  which 
had  been  taken  away  from  the  courts  by  the  Act  of  1894. 
The  Supreme  Court,  being  bound  to  follow  the  provisions 
of  that  act,  dismissed  the  writ  and  found  that  the  peti- 
tioner was  detained  under  due  process. 

It  may  still  be  urged  that  to  grant  the  writ  and  review 
the  facts  in  this  case  and  similar  cases  would  be  to  violate 
the  Act  of  1894  is  to  beg  the  question,  since  that  act  was 
confined  in  its  application  to  aliens.  But  the  argument 
overlooks  the  suggestion  that  no  person  can  be  heard  to  say 
that  the  provisions  of  that  or  any  other  act  do  not  apply^ to 
him  unless  he  proves,  in  the  method  provided  by  law,  that 
he  is  not  within  its  operation.  The  only  forum  provided  by 
the  laws  of  the  United  States  in  which  this  fact  is  sus- 
ceptible of  proof  in  the  case  of  persons  seeking  admission 
into  this  country  is  the  administrative  forum  of  the  Depart- 
ment of  Commerce  and  Labor.  It  can  be  shown  in  no  other 
siUnited  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 


544  The  Exclusion  and  Expulsion  of  Aliens. 


way.  It  is  true  that  the  jurisdiction  of  officers  of  that  de- 
partment depends  on  whether  or  not  the  person  is  seeking 
admission  under  any  law  or  treaty,  that  whether  or  not  a 
given  individual  is  in  fact  seeking  admission  under  such 
law  or  treaty  is  a judicial  question,  and  that,  if  a citizen 
seeks  admission  it  is  not  by  virtue  of  any  law  or 
treaty.  But  the  question  of  the  applicant’s  personal 
status  is  one  of  fact  which  must  necessarily  be  de- 
cided before  the  supplemental  question  of  law  as  to 
whether  persons  similarly  situated  seek  admission  under 
any  law  or  treaty  can  come  up.  The  Gonzales  case82  did 
no  more  than  to  decide  that  the  executive  officer’s  conclu- 
sion of  law  that  a Porto  Rican  .citizen  was  an  alien,  for  the 
purpose  of  the  Immigration  Act,  was  incorrect — it  did 
not  question  the  correctness  of  his  finding  of  fact  that  the 
applicant  was  a Porto  Rican. 

In  the  case  of  Chin  Yow  vs.  United  States83  the  petitioner 
was  excluded  from  admission  by  the  commissioner  of  im- 
migration, and  sought  relief  in  habeas  corpus  on  the 
ground  that  he  was  a citizen  of  the  United  States,  and  on 
the  further  ground  that  he  was  denied  a fair  hearing.  So 
far  as  the  allegation  of  citizenship  goes  the  case  was  within 
the  Ju  Toy84  case,  and,  like  that  case  would,  on  that  ground 
alone,  have  been  subject  to  dismissal  for  want  of  jurisdic- 
tion. With  regard  to  the  jurisdiction  of  the  district  court 
based  on  the  allegation  of  lack  of  a fair  hearing  the  Su- 
preme Court  said:  “If  the  petitioner  was  not  denied  a 
fair  opportunity  to  produce  the  evidence  that  he  desired, 
or  a fair  though  summary  hearing,  the  case  can  proceed  no 
farther.  These  facts  are  the  foundation  of  the  jurisdic- 
tion of  the  district  court,  if  it  has  any  jurisdiction  at  all. 
It  must  not  be  supposed  that  the  mere  allegation  of  the 
facts  opens  the  merits  of  the  case,  whether  those  facts  are 
proved  or  not.” 

82Gonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 

83208  U.  S.  8,  52  Law  Ed.  369. 

84United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 


Judicial  Review  of  Administrative  Decisions.  545 

This  language  must  not,  however,  be  construed  to  mean 
that  the  allegation  that  the  petitioner  was  refused  a fair 
hearing  is  the  only  ground  on  which  the  courts  can  as- 
sume jurisdiction.  The  finality  of  departmental  decisions 
is  destroyed  by  the  fact  of  lack  of  jurisdiction,  as  well  as  by 
the  fact  that  they  are  rendered  under  conditions  or  in  a 
mode  which  the  statute  does  not  authorize.  The  Ju 
Toy  Case85  held,  and  the  Chin  Yow86  decision  shows, 
that  the  mere  allegation  of  American  citizenship  does 
not  go  to  the  jurisdiction  of  departmental  officers. 
When  therefore,  as  in  the  latter  case,  beside  the  allegation 
of  an  unfair  hearing  the  only  other  allegation  made  is 
citizenship  in  the  applicant,  there  being  no  jurisdictional 
question  to  consider,  the  fact  of  the  unfair  hearing  is,  as 
the  court  states,  “the  foundation  of  the  jurisdiction  of  the 
court.”  This  constitutes  sufficient  ground  for  judicial  re- 
view, whether  the  departmental  officers  have  acted  with 
jurisdiction  or  without  it.  Or  both  grounds  together  may 
constitute  the  ground  of  the  Court’s  jurisdiction,  if,  in  ad- 
dition to  refusing  the  applicant  a fair  hearing,  the  depart- 
mental officers  attempt,  as  was  done  in  the  Gonzales  case,87 
to  exclude  a person  found  by  them  to  be  an  alien,  but  who 
was,  nevertheless,  not  amenable  to  the  Immigration  Laws. 

In  the  light  of  the  decisions  cited  in  this  section,  and 
particularly  of  the  principles  enunciated  in  the  Gonzales, 
Ju  Toy,  and  Chin  Yow  cases,  the  law  touching  the  finality 
of  departmental  decisions  excluding  aliens  attempting  to 
enter  the  United  States  under  any  law  or  treaty  may  be 
thus  summed  up : 

The  grounds  on  which  the  courts  may  assume  jurisdic- 
tion in  habeas  corpus  proceedings  are  two : The  fact  that 
as  a matter  of  law  the  alien  is  not  attempting  to  enter  the 
United  States  under  any  municipal  law  or  treaty,  and  the 
fact  of  an  unfair  hearing,  a denial  of  a hearing,  or  any 

85United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 

86CMn  Yow  v.  United  States,  208  U.  S.  8,  52  Law  Ed.  369. 

87Gonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 


546  The  Exclusion  and  Expulsion  of  Aliens. 


other  arbitrary  abuse  of  power  on  the  part  of  the  immi- 
gration officers  which  results  in  the  denial  of  a fair  hear- 
ing. In  assuming  jurisdiction  the  courts  must  accept  as 
absolute  and  binding  such  officers’  findings  of  fact,  except 
when  the  alleged  “findings”  are  not,  as  a matter  of  law, 
supported  by  any  evidence  whatsoever — the  only  ground 
for  the  court’s  assuming  jurisdiction  even  in  such  a case 
being  the  necessarily  arbitrary  nature  of  the  so-called  de- 
cision rendered  under  such  circumstances. 

In  order  to  give  the  courts  jurisdiction  it  is  sufficient  if 
the  petition  alleges  the  fact  of  the  absence  of  a fair  hear- 
ing irrespective  of  the  existence  or  absence  of  jurisdiction 
on  the  part  of  the  executive  officer.  That  allegation  stand- 
ing alone  is  sufficient  to  justify  judicial  review  to  the  ex- 
tent of  determining  whether  a fair  hearing  was  accorded; 
if  found  to  have  been  denied  then  the  Court  can  pass  on 
the  merits.  Where  the  claim  is  that  the  petitioner  does 
not  come  within  the  operation  of  the  act  under  color  of 
which  he  is  held  for  deportation  it  must  be  based  strictly 
on  the  facts  as  found  by  the  executive  officer;  and  if  on 
those  facts  as  found  the  Court  finds  that  the  petitioner  is 
not  within  the  operation  of  the  statute  under  color  of 
which  he  is  detained,  his  release  will  be  ordered.88  But  the 
claim  that  the  statutes  have  no  application  to  a given  case 
will  not  be  supported  by  the  mere  allegation  that  the  pe- 
titioner is  a citizen  of  the  United  States,  when  the  depart- 
mental officer  has  found  otherwise,  and  cannot  be  viewed 
in  the  light  of  a jurisdictional  question.89 

ssGonzales  v.  Williams,  192  U.  S.  1,  48  Fed.  317;  In  re  Nakashima,  160 
Fed.  842;  In  re  Buchsbaum,  141  Fed.  221;  Davies  v.  Manolis,  179  Fed.  818. 

89United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 


Evidence. 


547 


CHAPTER  V. 
EVIDENCE. 


I.  In  general. 

II.  The  burden  of  proof. 

A.  Under  the  Immigration  Act. 

1.  Evidence  not  prescribed  by  statute. 

(A.)  In  the  case  of  aliens  seeking  to  enter  the  United  States. 

(B.)  In  the  case  of  aliens  arrested  within  the  country. 

2.  Evidence  prescribed  by  statute. 

(A.)  Assisted  aliens. 

(B.)  Japanese  and  Korean  laborers. 

B.  Under  the  Chinese  Exclusion  Acts. 

1.  Evidence  not  prescribed  by  statute. 

(A.)  Of  citizenship  of  uersons  of  Chinese  descent. 

(1.)  Sufficiency  of  evidence  to  establish  fact  of  birth  in 
the  United  States. 

^(B.)  Marital  or  filial  relationship. 

(C.)  Of  prior  mercantile  status  during  registration  period. 

2.  Evidence  prescribed  by  statute. 

(A.)  In  general. 

(B.)  Certificates  as  evidence  of  the  right  of  holder  to  enter 
or  remain. 

(1.)  “Section  6”  Certificate. 

(2.)  Laborer’s  “return”  Certificate. 

(3.)  Certificates  of  Registration  or  Residence. 

(C.)  Evidence  available  in  absence  of  Certificate. 

3.  Other  classed  of  evidence  in  Deportation  Proceedings. 

4.  Sufficiency  of  evidence  in  determining. 

(A.)  Laborer  Status. 

(B.)  Mercantile  Status. 

I.  In  General. 

In  taking  up  the  subject  of  evidence  in  connection 
with  the  study  of  the  exclusion  and  immigration  laws,  a 
brief  survey  of  the  acts  and  of  the  leading  cases  in  which 
some  question  of  evidence  has  been  submitted  to  judicial 
determination  suffices  to  show  that,  although  the  cases  in 
which  such  questions  are  discussed  are  fairly  numerous, 
considering  the  total  number  of  adjudications  based  on  the 
acts,  they  present  little  or  nothing  that  is  new  or  of  any 


548  The  Exclusion  and  Expulsion  of  Aliens. 

particular  interest  in  the  law  or  rules  of  evidence.  This 
is  due  mainly  to  the  fact  that  the  thing  to  be  proven  in 
deportation  proceedings  is  always  the  same;  that  is,  the 
right  of  the  defendant  to  remain  in  or  to  enter  the  United 
States.  The  facts  necessary  to  establish  this  right  are 
few  and  simple  and  largely  prescribed  by  statute,  and  the 
kind  of  evidence  submitted  to  support  them  must  neces- 
sarily be  of  the  same  general  nature.  Thus,  as  has  been 
shown,  the  Chinese  laborer  arrested  under  the  Act  of  1892, 
as  amended,  for  failure  to  register,  had  only  to  establish 
the  fact  that  he  failed  to  do  so  by  accident,  by  sickness,  or 
by  some  other  unavoidable  cause,  and  that  he  was  a resi- 
dent in  the  United  States  prior  to  the  registration  period. 
Although  accidents  are  infinite  in  variety  the  mode  of 
proving  them  is  generally  of  the  simplest,  necessarily  con- 
sisting in  deportation  cases,  as  in  ordinary  proceedings,  in 
the  physical  evidences  thereof  apparent  in  the  person  of 
the  defendant,  corroborated  by  the  statements  of  a suffi- 
cient number  of  credible  witnesses  of  the  former,  and  by 
the  assertions  of  the  defendant  coupled  with  the  usual  cor- 
roboration and  proof,  to  the  satisfaction  of  the  presiding 
officer.  The  same  may  be  said  with  regard  to  establishing 
the  fact  of  sickness  or  unavoidable  cause.  The  corrobora- 
tive facts  naturally  differ  as  to  time  and  locality;  but  the 
general  nature  of  the  evidence  must  necessarily  remain  the 
same. 

The  extent  or  kind  of  the  proof  to  be  offered  in  such 
cases  as  the  above  is  not  the  determinative  factor  in  the 
final  result,  for  that  factor  is  prescribed  by  law  to  be  the 
proof  of  the  facts  alleged  “to  the  satisfaction  of  the  judge 
or  commissioner.”1  It  has,  however,  been  held  that  where 
in  deportation  proceedings  before  a District  Court  on  ap- 
peal the  appellant  has  asserted  American  citizenship  as 
the  basis  of  his  right  to  remain  the  right  of  the  Govern- 
ment to  deport  or  banish  cannot  be  exercised  until  such 

iYee  N’Goy  v.  United  States,  116  Fed.  333;  United  States  v.  Leung  Sam, 
114  Fed.  702. 


Evidence. 


549 


right  has  been  judicially  determined  in  accordance  with 
the  usual  or  ordinary  rules  of  evidence2  even  if  not  “to  the 
satisfaction  of  the  Commissioner.”  The  proceedings  not 
being  criminal  in  nature,  the  element  of  reasonable  doubt 
does  not  call  for  consideration  in  determining  whether  the 
judgment  shall  be  a discharge  of  the  defendant,  or  an  order 
for  his  deportation.  The  judge  or  commissioner  must  be 
satisfied — and  that  is  all;  and  it  is  at  least  safe  to  say 
that  if  a reasonable  doubt  exists  in  the  mind  of  the  presid- 
ing officer  he  will  not  be  satisfied  with  the  proof  before 
him.  But,  as  has  already  been  shown,3  satisfaction,  as  the 
term  is  used  in  the  act,  has  a special,  although  a broad 
meaning — special  in  so  far  as  it  precludes  the  amount  of 
proof  which  would  be  required  to  satisfy  a mind  domi- 
nated by  arbitrary,  obstinate,  or  unreasoning  modes  of 
thought — broad  in  so  far  as  it  requires  the  proof  offered 
to  be  such  as  thoroughly  to  convince  a reasonable  and  un- 
biased man  of  the  truth  of  the  representations  made  on 
the  part  of  the  defendant.  Proof  of  former  residence  must, 
in  like  manner,  be  made  to  the  satisfaction  of  the  court  or 
commissioner;  but  in  this  case  the  source  of  at  least  a 
portion  of  such  proof  must  be  one  credible  witness  other 
than  Chinese.  Whether  or  not  such  witness  is  to  be  be- 
lieved is  likewise  to  be  determined  to  the  satisfaction  of 
the  presiding  official. 

Under  these  conditions,  and  bearing  in  mind  that  a ju- 
dicial review  of  any  given  case  originating  before  a com- 
missioner constitutes  on  appeal  a hearing  of  the  facts  de 
novo,  and  further  that  the  facts  in  any  given  case  must 
necessarily  differ,  in  degree  at  least  if  not  so  much  in  kind, 
from  those  in  any  other  given  case,  those  who  rely  on  ju- 
dicial precedent  to  establish  their  contention,  whatever  it 
may  be,  have  no  light  task.  A search  for  authoritative 
precedent  among  cases  determined  virtually  solely  on  the 
facts  constitutes  no  more  or  less  than  a search  for  a prior 

2Moy  Suey  v.  United  States,  147  Fed.  697. 

sSupra. 


550  The  Exclusion  and  Expulsion  of  Aliens. 

decision  based  on  a similar  or  at  least  closely  analogous 
state  of  facts.  Under  these  conditions  the  difficulty,  if  not 
the  impossibility,  of  completely  covering  the  subject  of 
evidence  in  connection  with  the  Chinese  exclusion  acts 
without  actually  setting  forth  the  separate  state  of  facts 
peculiar  to  each  case  considered  by  the  courts  on  appeal 
becomes  at  once  apparent.  Reference  is  made  advisedly  in 
this  connection  to  the  Chinese  exclusion  laws  apart  from 
the  immigration  acts,  for  the  reason  that  even  before  the 
Act  of  August  18,  1894,  went  into  effect,  the  courts  showed 
no  inclination,  even  on  habeas  corpus,  to  review  the  decis- 
ions of  executive  officers  charged  with  the  execution  of  the 
immigration  acts  when  the  questions  involved  were  solely 
questions  of  fact;  and  since  the  passage  of  the  said  act  it 
is  settled  law  that  administrative  decisions  will  not  be  re- 
viewed by  the  courts,  on  habeas  corpus  or  otherwise,  ex- 
cept as  to  errors  of  law  made  by  Ihe  executive  officials,  or 
unless  the  hearing  given  the  applicant  for  admission  is 
shown  to  have  been  unfair  and  the  decision  therefore  an  ar- 
bitrary one. 

While,  therefore,  it  might  be  of  some  practical  value 
to  insert  in  this  work  a complete  digest  of  all  the 
facts  in  such  cases,  together  with  the  judgments  rendered 
therein,  it  is  thought  that  whatever  slight  assistance  such 
a compilation  might  afford  in  the  way  of  precedent  would 
be  offset  by  the  fact  that  the  value  of  such  precedents, 
small  as  it  always  was,  is  diminishing  rather  than  in- 
creasing. This  is  due  to  the  fact  that  the  vast  majority  of 
cases  of  applicants  for  admission  arising  under  the  exclu- 
sion and  immigration  acts  are  tried  administratively,  and 
are  not  subject  to  judicial  review,  and  to  the  further  fact 
that  by  sections  20  and  21  of  the  present  immigration  Act 
of  February  20,  1907,  the  Secretary  of  Commerce  and  La- 
bor is  empowered,  when  satisfied  that  an  alien  has  been 
found  in  the  United  States  in  violation  of  that  act,  or  that 
he  is  subject  to  deportation  under  the  provisions  thereof, 
or  under  any  law  of  the  United  States,  to  cause  such  alien 


Evidence. 


551 


within  three  years  after  landing  or  entry  to  be  deported — 
the  process  being  strictly  administrative  in  its  nature.  It 
is  true  that  the  Act  of  February  20,  1907,  provides  that  the 
act  shall  not  be  construed  to  repeal,  alter,  or  amend  ex- 
isting laws  relating  to  the  admission  or  exclusion  of  Chi- 
nese persons4  and  that  it  has  been  judicially  held  that  the 
immigration  act  does  not  apply  to  Chinese  laborers  unlaw- 
fully in  the  United  States.5  The  opposite  view  has,  how- 
ever, been  taken  by  other  Federal  Courts.6  Be  this  as  it 
may,  while  it  is  not  thought  that  the  power  given  to  the 
Secretary  of  Commerce  and  Labor  in  Section  21,  if  in  fact 
it  applies  to  all  Chinese  persons  unlawfully  in  the  United 
States,  would  operate  to  exclude  judges  or  commissipners 
from  the  exercise  of  the  powers  conferred  on  them  by  the 
Chinese  exclusion  acts,  it  would  at  least  tend  to  reduce  in 
great  part  the  number  of  those  cases  over  which  they  at 
present  have  jurisdiction;  and  to  this  extent  diminish  the 
number  of  cases  in  which  questions  of  evidence  can  come 
up  for  judicial  review. 

Procedure  under  the  immigration  acts  differs  some- 
what from  that  prescribed  by  the  Chinese  exclusion  acts 
in  that  the  former  is  in  all  stages  purely  administrative, 
whereas  the  latter  presents  features  of  a strictly  adminis- 
trative character  only  when  the  question  involved  is  that 
of  the  right  of  the  applicant  to  enter  the  United  States.7 
Under  the  immigration  acts,  the  right  of  the  alien  to  re- 
main is  determined  by  proceedings  held  under  the  direc- 
tion of  immigration  officers  on  the  authority  of  a warrant 
of  arrest  signed  by  the  Secretary  or  Assistant  Secretary 

*Sec.  43. 

5Wong  You  v.  United  States,  181  Fed.  313. 

6Looe  Shee  v.  North,  170  Fed.  566;  Ex  parte  Li  Dick,  176  Fed.  998;  Ex 
parte  Wong  You,  176  Fed.  933.  The  Supreme  Court  of  the  United  States 
has  definitely  settled  the  question  by  reversing  the  decision  of  the  Circuit 
Court  of  Appeals  for  the  Second  Circuit  (181  Fed.  313,  supra  n.)  in  the 
recent  case  of  United  States  v.  Wong  You  et  al.,  223  U.  S.  67,  56  Law  Ed. 

?See  Chapter  on  “Deportation  Procedure”  post,  p.  614. 


552  The  Exclusion  and  Expulsion  of  Aliens. 

of  Commerce  and  Labor  as  provided  by  section  21  of  the 
act.  Under  the  Chinese  exclusion  acts  on  the  other  hand 
the  proceedings  are  quasi- judicial  in  nature,  and  are  con- 
ducted in  the  first  instance  by  a United  States  commis- 
sioner, and  in  case  of  appeal  the  facts  are  reviewed  de 
novo  by  the  United  States  judge  for  the  district  in  which 
the  original  hearing  was  had. 

Deportation  proceedings  under  either  branch  of  the  law 
being  sui  generis,  the  rules  of  evidence  common  to  ordinary 
civil  and  criminal  procedure  have  no  application;  there 
are,  in  other  words,  no  rules  setting  forth  the  manner  in 
which  the  prisoner’s  case  is  to  be  presented.  But  in  cer- 
tain classes  of  cases  to  be  considered  later  in  connection 
with  the  subject  of  evidence  in  its  application  to  deporta- 
tion proceedings  under  the  Chinese  exclusion  acts,  both 
purely  administrative  or  quasi- judicial,  Congress  has  des- 
ignated certain  specified  facts  tvhich  must  be  shown  to 
exist  in  order  to  give  the  right  to  return  or  remain,  as  well 
as  the  persons  by  whom  these  facts  must  be  sworn  to. 
Where  the  statutes  do  not  prescribe  the  nature  of  the  proof 
to  be  presented,  the  alleged  right  may  be  sustained  by  any 
and  all  facts  at  the  alien’s  command — and  the  presiding 
officer  is  in  no  way  limited  by  law  as  to  the  nature  or 
amount  of  the  evidence  which  he  may  consider. 

The  evidence  to  be  presented  in  deportation  proceedings 
may  then  be  roughly  classified  as  that  which  is  and  that 
which  is  not  prescribed  by  statute. 

II.  The  Burden  of  Proof. 

A.  Under  the  Immigration  Act. 

Under  the  Chinese  exclusion  acts  the  burden  of  proving 
either  the  right  to  enter  or  remain  is  imposed  on  the 
Chinese  person  by  whom  the  right  is  claimed.  Merchants 
may  enter  or  remain  only  by  presenting  the  proofs  re- 
quired whether  in  the  shape  of  certificates  or  by  showing 


Evidence. 


553 


the  existence  of  certain  facts  in  the  manner  prescribed  by 
law.  Laborers  are  entitled  to  return  on  the  showing  pre- 
scribed by  the  statute,  and  on  further  proof,  if  deemed  nec- 
essary by  the  immigration  officials  that  the  applicant  is 
the  person  named  in  the  certificate  he  presents;  or  to  re- 
main only  by  presenting  the  evidence  of  their  right  to  do 
so  whenever  the  law,  as  by  the  Acts  of  1892  or  1893,  re- 
quires such  proof.  And  the  burden  of  proving  his  right  to 
remain  is  on  any  Chinese  person — excepting  those  specially 
exempted  from  the  provisions  of  the  act  or  by  treaty — who 
is  in  the  United  States.  In  short,  the  laws  regarding  the 
exclusion  or  admission  of  Chinese  persons  absolutely  ex- 
cludes newcomers  of  the  laboring  class,  and  imposes  on 
those  who  belong  to  the  exempt  classes  the  burden  of  prov- 
ing their  exemption ; while  under  the  immigration  acts,  all 
aliens  being  entitled  to  admission  except  such  as  belong  to 
certain  classes  membership  in  which  subjects  the  alien  to 
expulsion,  the  burden  is,  generally  speaking,  on  the  Gov- 
ernment to  prove  that  a given  alien  is  not  entitled  to  land, 
or  if  already  landed,  to  remain. 

Since  by  general  intendment,  the  immigration  laws  im- 
pose the  burden  of  proving  the  fact  of  the  alien’s  ineligi- 
bility thereunder  on  the  Government,  the  obligation  to 
prove  the  contrary  can  only  rest  on  the  foreigner  seeking 
admission,  where  the  law  clearly  provides  that  such  is  the 
intent.  This  would  naturally  appear  in  the  form  of  a pro- 
vision made  applicable  to  a specially  designated  class  or 
classes,  stating  directly  that  the  burden  of  proving  their 
exemption  is  on  them,  and  prescribing  special  rules  of 
evidence  whereby  the  right  to  land  must  be  shown  to 
exist. 

1.  Evidence  Not  Prescribed  by  Statute. 

(A.)  Aliens  Seeking  to  Enter  the  United  States. 

When  the  alien  lands,  say  at  Ellis  Island  docks,  he 
forms  one  of  a line  of  passengers  which  passes  before  the 
desk  of  the  examining  inspector  to  whom  that  particular 


554  The  Exclusion  and  Expulsion  of  Aliens. 

line  is  assigned.  From  two  to  five  minutes  are,  as  a rule, 
devoted  to  tlie  “line”  or  “primary”  examination  of  each 
alien — not  to  be  known  as  a preliminary  examination  in 
the  case  of  those  “who  may  not  appear  to  the  examining 
immigrant  inspector  to  be  clearly  and  beyond  a doubt  en- 
titled to  land.”  The  purpose  of  this  brief  examination  is 
to  enable  the  inspector  to  determine  whether  or  not  the 
particular  applicant  shall  be  detained  for  examination  by 
the  board  of  special  inquiry  provided  by  the  act.  Whether 
or  not  the  alien  shall  be  detained  for  this  purpose  depends 
wholly  on  the  opinion  of  the  inspector  as  to  his  eligibility, 
based  either  on  the  alien’s  general  personal  appearance  or 
cn  the  answers  with  which  the  former’s  questions  are  re- 
ceived. Detention  for  further  examination  by  the  board 
is  not  to  be  considered  a detention  resulting  from  a deci- 
sion to  the  effect  that  the  alien  is  within  the  excluded 
classes,  for  the  inspector  is  not  authorized  by  law  to  ren- 
der a decision ; but  the  duty  to  detain  is  imperatively  im- 
posed upon  him  as  the  result  of  the  existence  of  a doubt 
in  his  mind,  no  matter  how  vague,  of  the  tight  of  the  alien 
to  land. 

Section  25  provides  that  the  board  of  special  inquiry 
has  the  authority  to  determine  whether  an  alien  who  has 
been  duly  held  shall  be  allowed  to  land  or  shall  be  de- 
ported; and  all  hearings  held  by  its  members  shall  be 
separate  and  apart  from  the  public,  but  they  shall  keep 
a complete  permanent  record  of  their  proceedings,  and  of 
all  such  testimony  as  shall  be  produced  before  them. 

There  is  no  provision  in  the  law  that  in  case  of  doubt 
as  to  his  eligibility  the  alien  shall  at  the  hearing  before 
the  board  be  under  the  obligation  of  dispelling  such  doubt 
in  the  minds  of  his  examiners.  The  fact  that  sufficient 
doubt  has  existed  in  the  mind  of  the  examining  inspector 
to  detain  him  for  examination  does  not  imply  the  presence 
of  such  a doubt  in  the  mincls  of  the  members  of  the  board. 
The  law  contemplates  a full  and  fair  hearing;  and  so  fully 
has  this  principle  been  recognized  by  the  courts  that  it 


Evidence. 


555 


has  been  held  that  an  examining  inspector  who  caused 
an  alien  to  be  held  for  examination  may  not,  under  the 
law,  constitute  a member  of  the  board  which  is  to  decide 
on  his  right  to  enter.8 

The  real  object  of  the  board’s  examination  would  seem 
to  be  not  to  determine  whether  the  alien  has  a right  to 
enter — but  whether  it  is  the  duty  of  its  members  to  ex- 
clude him  under  the  law.  It  is  true  that  the  act  provides 
that  the  members  shall  have  the  authority  to  determine 
whether  he  shall  be  allowed  to  land — but  the  Supreme 
Court  of  the  United  States  has  held  that  the  decision  of 
the  Board  allowing  an  alien  to  enter  is  in  no  way  deter- 
minative of  that  right  or  of  his  right  to  remain  as  against 
a subsequent  decision  of  the  Secretary  of  Commerce  and 
Labor  denying  the  right. 

The  only  grounds  on  which  the  board  may  arrive  at  an 
excluding  decision  is  by  finding  as  a matter  of  fact  that 
the  alien  belongs  to  a class  membership  in  which  bars  him 
from  admission  under  the  law.  If  the  board  fails  to  reach 
such  a conclusion  or  to  make  such  a finding  the  alien  must 
be  considered  entitled  to  land — and  herein  lies  the  distinc- 
tion between  the  Chinese  exclusion  acts  and  the  immigra- 
tion act  regarding  the  burden  of  proof.  The  Chinese  ex- 
clusion acts  purport  no  more  to  exclude  Chinese  merchants 
from  their  operation  than  does  the  immigration  act 
to  exclude  aliens  who  are  free  from  the  disabilities  which 
operate  to  exclude.  But  by  imposing  on  Chinese  mer- 
chants the  obligation  of  proving  their  exempt  status  by 
means  of  the  certificate  of  identity  the  Government  was 
relieved  from  the  obligation  of  proving  that  a Chinese  per- 
son presenting  himself  for  admission  was  in  fact  a laborer. 
The  immigration  act  does  not  impose  the  burden  of  prov- 
ing the  fact  of  their  admissibility  on  aliens  of  the  exempt 
class,  and,  consequently,  it  devolves  upon  the  Government 
to  prove  that  the  exemption  claimed  does  not  in  fact  exist. 

sUnited  States  v.  Redfern,  180  Fed.  500. 


556  The  Exclusion  and  Expulsion  of  Aliens. 


But  inasmuch  as  the  act  imposes  no  limitation  on  the 
methods  to  be  used  or  the  sources  on  which  the  board 
cf  special  inquiry  may  draw  in  order  to  determine  whether 
or  not  the  alien  applicant  is  exenjpt  as  claimed,  other  than 
that  he  shall  be  given  a full  and  fair  hearing,  any  and  all 
facts  which  may  appear  to  the  presiding  officials  to  have 
any  bearing  on  the  issue  may  be  properly  drawn  upon  in 
order  to  enable  them  to.  reach  their  conclusion.  They 
must  examine  all  the  evidence  which  the  applicant  pre- 
sents;9 but  the  question  of  what  weight  they  shall  give  to 
any  evidential  fact,  whether  consisting  in  the  physical  or 
mental  attitude  of  the  alien  himself,  his  behavior,  his 
statements  or  those  of  witnesses  appearing  in  his  behalf,  is 
to  be  determined  by  them  alone. 

In  certain  classes  of  cases,  the  exclusion  of  the  alien  is 
necessarily  determined  on  no  other  principle  of  evidence 
than  that  of  res  ipsa  loquitur . This  occurs  in  all  cases 
where  the  disability  found  to  exist  is  tuberculosis  or  a 
loathsome  or  dangerous  contagious  disease,  idiocy,  imbe- 
cility, feeble-mindedness,  epilepsy  or  insanity,  or  where 
the  alien  is  found  to  be  and  is  certified  by  the  examining 
surgeon  as  being  mentally  or  physically  defective,  such 
mental  or  physical  defect  being  of  such  a nature  as  may 
affect  the  ability  of  the  alien  to  earn  a living.  Although 
the  subject  himself  may  be  said  to  constitute  or  provide 
the  evidence  on  which  the  excluding  decision  is  based  the 
burden  of  proof  still  rests  on  the  Government.  To  be 
sure,  the  proof  is  at  hand  in  the  presence  and  appearance 
of  the  alien,  but  the  burden  of  discovering  and  recogniz- 
ing the  evidences  of  the  defect  is  necessarily  assumed  by 
those  on  whom  the  law  imposes  the  duty  of  determining 
whether  or  not  it  exists. 

A situation  somewhat  analogous  is  presented  by  persons 
likely  to  become  public  charges,  paupers  or  professional 
beggars.  Persons  likely  to  become  public  charges  be- 

aUnited  States  v.  Sing  Tuck,  194  U.  S.  161,  48  Law  Ed.  917;  Chin  Yow 
y.  United  States,  208  U.  S.  8,  52  Law  Ed.  369. 


Evidence. 


55T 


cause  of  some  physical  or  mental  defect  would  generally 
come  within  the  class  of  those  found  to  be  suffering  from 
some  defect  which  is  certified  by  the  examining  sur- 
geon as  being  such  as  to  probably  involve  their  mainte- 
nance by  the  state  if  allowed  to  enter.  Whether  an  alien 
is  a pauper,  a professional  beggar  or  likely  to  become  a 
public  charge  may  be  in  part,  at  least,  inferred  from  per- 
sonal appearance  aside  from  physical  or  mental  defects,  or 
from  other  evidence  tending  to  show  that  he  may  well  be 
considered  a member  of  the  objectionable  classes.  Since 
all  relevant  facts  may  be  taken  into  consideration  by  the 
members  of  the  board  in  reaching  their  conclusion,  and 
since  they  are  the  sole  judges  of  whether  or  not  a given 
fact,  even  in  the  face  of  opposing  testimony,  is  sufficient 
to  warrant  an  excluding  decision,  it  is  plain  that  the  per- 
sonal appearance  and  bearing  of  the  applicant  may  be  and 
often  is,  of  itself,  the  sole  and  sufficient  ground  of  his  re- 
jection, irrespective  of  other  and  oral  testimony  to  the 
contrary.10 

Courts  Generally  Without  Power  to  Revieto  the  Evidence. 

In  the  case  of  United  States  ex  rel.  Barlin  v.  Rodgers,11  it 
was  claimed  that  there  was  no  testimony  or  insufficient  tes- 
timony to  warrant  the  findings  of  the  inspectors.  The  court 
after  commenting  on  the  fact  that  the  record  showed  that 
testimony  of  witnesses  summoned  on  behalf  of  the  alien 
was  heard  said:  “But  more  than  all,  the  alien  himself 
was  present  and  subjected  to  personal  examination  by 

the  inspectors The  printed  record  of  the  answers 

made  by  the  alien  and  witnesses does  not  fairly  pre- 
sent the  case The  important  factor  of  the  impres- 

sion made  upon  the  inspectors  by  the  personal  appearance 
of  and  the  conversation  had  with  the  aliens  is  necessarily 
absent  from  the  record.  We  can  well  conceive  that  such 

loUnited  States  ex  rel.  Tommaso  Buccino  and  Salvatore  Buccino,  190  Fed. 
897. 

1U91  Fed.  790. 


558  The  Exclusion  and  Expulsion  of  Aliens. 


an  impression  would  have  a most  important  bearing  upon 
the  determination  reached  by  the  inspectors  in  those  cases 
in  which  the  alien  was  debarred  from  entry,  on  the  ground 
that  he  was  likely  to  become  a public  charge  or  as  having 
been  certified  by  the  examining  surgeon  as  mentally  or 
physically  defective  in  such  a way  as  to  affect  his  ability 
to  earn  a living.  We  are  not  at  liberty  to  set  aside  such 
determination,  because  on  the  record  we  think  we  might 
or  would  have  reached  a different  conclusion.  We  have 
only  to  find  that  the  inspectors  acted  within  the  scope  of 
their  authority  and  that  the  integrity  of  their  proceedings 
is  not  impeached.” 

While  it  is  true  that  the  examining  officers  must  con- 
sider all  the  testimony  offered  to  rebut  the  unfavorable 
presumption  raised  by  the  personal  appearance  or  other 
characteristics  of  the  applicant  this  does  not  mean  that, 
having  once  considered  the  evidence  thus  offered,  they  are 
not  at  liberty  to  conclude  that  it  is  lacking  in  sufficient 
probative  value  to  affect  their  decision,  or  that  it  has  no 
probative  force  at  all.  There  is  a vast  difference  between 
rejecting  statements  put  forward  to  support  an  alleged 
state  of  facts,  and  disregarding  them  in  the  sense  of  reach- 
ing the  conclusion  that  they  have  no  weight  when  put 
forward  as  evidence  in  a given  case. 

When  the  Courts  Will  Review  the  Evidence. 

Touching  the  subject  of  judicial  review  of  evidence  pre- 
sented in  proceedings  purely  administrative,  attention 
may  be  called  at  this  stage  to  one  exception  to  the  rule  that 
the  evidence  thus  given  is  not  reviewable  by  the  courts. 
Grounds  for  this  exception  exist  where  it  appears  that 
the  evidence  given  could  lead  to  only  one  conclusion  on 
the  part  of  a fair-minded  man/2  or  where  the  evidence 
bearing  on  the  right  of  the  alien  to  enter  is  so  conclusive 
of  that  right  as  to  make  an  adverse  departmental  ruling 

12 Ex  parte  Petterson,  166  Fed.  536. 


Evidence. 


559 


arbitrary  and  unjust.13  But  the  fact  that  the  courts  will 
exercise  this  power  of  review  in  such  cases  is  not  based  on 
any  general  right  to  examine  the  evidence  taken  in  pro- 
ceedings before  departmental  officers,  but  on  the  ground 
that  the  findings  made  do  not  constitute  a decision  as  that 
word  is  used  in  the  Act  of  August  18, 1894 ; in  other  words, 
that  a decision  is  required  by  the  statute,  and  that  a mere 
arbitrary  expression  of  opinion,  not  having  in  the  facts 
presented  to  the  officer  expressing  it  any  basis  or  justifica- 
tion whatever,  is  sufficient  to  show  that  the  hearing  itself 
was  not  conducted  by  the  officer  with  a fair  and  unbiased 
mind.  Such  cases  are  necessarily  rare,  and  the  courts 
will  be  extremely  slow  to  assume  jurisdiction  on  this 
ground  where  the  only  evidence  of  unfairness  is  the  con- 
flict between  the  finding  and  the  facts  presented  at  the 
hearing. 

(B.)  Aliens  Arrested  Within  the  Country. 

In  proceedings  brought  to  deport  aliens  arrested  within 
the  country  the  procedure  differs  somewhat  from  that 
which  characterizes  hearings  before  boards  of  special 
inquiry,  but  the  burden  of  proof  is  naturally  upon  the 
Government.  The  law  provides  merely  that  certain 
classes  of  aliens  “shall  upon  the  warrant  of  the  Secre- 
tary of  Commerce  and  Labor  be  taken  into  custody  and  de- 
ported’’ in  case  the  latter  “shall  be  satisfied  that  (he) 
has  been  found  in  the  United  States  in  violation  of  this 
act,  or  that  he  is  subject  to  deportation,  etc.”14  But  it  is 
provided  by  Kule  22  that  “officers  shall  make  thorough  in- 
vestigation of  all  cases  when  they  are  credibly  informed  or 
have  reason  to  believe  that  a specified  alien  in  the  United 
States  is  subject  to  arrest  and  deportation  on  warrant; 
that  the  application  for  the  warrant  must  state  facts 
bringing  the  alien  within  a class  subject  to  deportation 
after  entry;  that  upon  receipt  of  a warrant  of  arrest  the 

Ex  parte  Jong  Jun  Hong,  157  Fed.  447. 

^Sections  20  and  21  Act  1907. 


560  The  Exclusion  and  Expulsion  of  Aliens. 

alien  shall  be  taken  before  the  appropriate  immigration 
officials  and  granted  a hearing  to  enable  him  to  show  cause 
why  he  should  not  be  deported ; and  that  during  the  course 
of  the  hearing  the  alien  shall  be  allowed  to  inspect  the 
warrant  and  all  the  evidence  on  which  it  was  issued , to 
have  counsel,  and  by  him  to  make  a copy  of  the  minutes 
so  far  as  it  has  proceeded,  and  to  offer  evidence  to  meet 
any  evidence  theretofore  or  thereafter  presented  by  the 
Government.  And  at  the  close  of  the  hearing,  the  full 
record  is  sent  to  the  Bureau  of  Immigration  in  order  that 
the  Secretary  of  Commerce  and  Labor  may  decide  whether 
the  proceedings  are  such  as  to  justify  the  issuance  of  a 
warrant  of  deportation.  The  burden  of  making  out  a 
prima  facie  case  is  thus  clearly  upon  the  Government. 

2.  Evidence  Prescribed  by  Statute. 

(A.)  Assisted  Aliens. 

Any  alien  whose  ticket  or  passage  is  paid  for  with  the 
money  of  another,  or  who  is  assisted  by  others  to  come 
must,  in  order  to  prove  his  right  to  enter  “affirmatively 
and  satisfactorily  show”  that  he  does  not  belong  to  any 
of  the  excluded  classes  and  that  his  ticket  or  passage  was 
not  paid  for  by  any  corporation,  association,  society, 
municipality  or  foreign  government  either  directly  or  indi- 
rectly. In  other  words,  the  payment  of  an  alien’s  passage 
or  ticket  by  another,  or  the  fact  that  he  is  assisted  by  others 
to  come,  raises  a presumption  against  his  admissibility 
which  he  must  rebut  by  proof  of  the  facts  prescribed  by 
the  act. 


(B.)  Japanese  and  Korean  Laborers, 

Section  1 of  the  Act  provides  that  whenever  the  Presi- 
dent shall  be  satisfied  that  passports  issued  by  any  foreign 
government  to  its  citizens  to  go  to  any  country  other  than 
the  United  States  or  to  its  insular  possessions  or  to  the 


Evidence. 


5bl 


Canal  Zone  are  being  used  for  the  purpose  of  enabling  hold- 
ers to  come  to  this  country  to  the  detriment  of  labor 
conditions  here,  he  may  refuse  to  permit  such  citizens  to 
enter  this  country  from  such  other  country  or  its  out- 
lying possessions  or  territory  subject  to  its  sovereignty. 
On  March  14,  1907,  it  was  announced  by  presidential 
proclamation  that  the  President  was  satisfied  that  pass- 
ports were  being  issued  to  citizens  of  Japan  and  Korea 
for  that  purpose,  that  Japanese  and  Korean  laborers, 
skilled  and  unskilled,  who  had  secured  passports  to  go  to 
Mexico,  Canada,  and  Hawaii  were  to  be  refused  admission 
to  this  country,  and  that  the  Secretary  of  Commerce  and 
Labor  was  empowered  to  take  the  necessary  steps  to  en- 
force the  prohibition.  Thereupon  the  Department  adopted 
the  following  rule : That  if  a Japanese  or  Korean  laborer 
applies  for  admission  and  presents  no  passport  it  shall  be 
presumed  (1)  that  he  did  not  possess  when  he  departed 
from  Japan  or  Korea  a passport  enabling  him  to  come  to 
the  United  States,  and  (2)  that  he  did  possess  at  that  time 
a passport  limited  to  Mexico,  Canada  or  Hawaii.  It  was 
further  provided  that  “if  the  applicant  presents  a passport 
limited  to  Mexico,  Canada  or  Hawaii  but  claims  that  he 
is  not  a laborer,  skilled  or  unskilled,  proof  of  such  claim 
shall  be  required.”  The  rule  providing  the  double  pre- 
sumption was  subjected  to  severe  criticism  and  pronounced 
beyond  the  power  of  the  Commissioner  General  of  Immi- 
gration to  provide  in  the  case  of  United  States  v.  Hemet.15 
The  second  provision  imposes  on  the  Japanese  or  Korean 
applicant  the  burden  of  proving  that  he  is  not  a laborer, 
skilled  or  unskilled,  within  the  meaning  of  the  act.  This 
is  a much  less  drastic  provision  than  that  which  obtains 
under  the  exclusion  statutes,  the  distinction  being  that 
under  this  rule  the  alien  is  not  restricted  as  to  the  manner 
in  which  he  shall  prove  his  exemption  from  the  prohibition 
of  the  proclamation,  whereas  under  the  exclusion  acts  the 


15156  Fed.  285. 


562  The  Exclusion  and  Expulsion  of  Aliens. 


exempt  status  at  the  time  of  entry  can  only  be  shown  by 
at  least  prim  a facie  proof  of  its  existence  in  the  mode  pre- 
scribed by  law  to  the  exclusion  of  all  other  modes  of  proof. 

B.  Under  the  Chinese  Exclusion  Acts. 

The  evidence  on  which  Chinese  persons  can  establish 
their  right  to  enter  or  to  remain  in  the  United  States  has, 
almost  from  the  beginning  of  legislation  having  for  its 
object  the  exclusion  from  this  country  of  subjects  of  the 
Chinese  Empire,  been  prescribed,  limited  and  regulated 
by  statute.  The  certificates  of  identity  prescribed  by  sec- 
tion 6 of  the  Act  of  1882,  commonly  called  “Section  6 Cer- 
tificates/’ were  issued  for  the  sole  purpose  of  constituting 
evidence  of  the  right  of  persons  other  than  laborers  to 
enter  the  United  States;  and  the  certificates  prescribed  by 
sections  4 and  5 of  said  act,  commonly  called  “return  cer- 
tificates,” were  issued  as  evidence  on  which  laborers 
leaving  the  United  States  might  be  permitted  to  re-enter. 
The  latter,  issued  by  the  United  States  Government,  con- 
stituted what  appeared  at  the  time  of  the  passage  of  the 
act  to  be  the  best  available  method  of  identifying  the  la- 
borers on  their  prospective  return ; and  the  former,  issued 
by  the  Chinese  government,  constituted  no  more  or  less 
than  the  averment  on  the  part  of  that  government  that  the 
holders  belonged  to  some  one  of  the  exempted  classes. 
The  ineffectiveness  of  this  measure  to  put  a stop  to  the 
continued  influx  of  Chinese  laborers  gave  rise  to  the 
amendatory  Act  of  1884,  which  provided  that  the  “section 
6 certificate”  “shall  be  the  sole  evidence  permissible  on 
the  part  of  the  person  so  producing  the  same  to  establish 
a right  of  entry  into  the  United  States ; but  said  certificate 
may  be  controverted,  and  the  facts  therein  stated  dis- 
proved by  the  United  States  authorities.” 

This  act  was  followed  by  the  Act  of  September  13, 
1888,  at  the  time  of  the  passage  of  which  a proposed 
treaty  with  China  was  under  negotiation.  The  Chinese 


Evidence. 


563 


government  failing  to  ratify  the  treaty,  the  Act  of  October 
1,  1888,  was  passed,  which  specifically  provided  that  no 
Chinese  laborer  should  be  allowed  to  return  to  the  United 
States,  whether  or  not  provided  with  the  return  certificate 
issued  under  the  Act  of  1882,  as  amended  by  that  of  1884. 
This  act  was,  however,  repealed  by  the  treaty  with  China 
of  December  8,  1894, 16  and  succeeded  by  the  Act  of  May 
5,  1892,  subsequently  amended  by  that  of  November  3, 
1893. 17  The  Act  of  1892  continued  in  force  all  laws  pro- 
hibiting and  regulating  the  coming  into  this  country  of 
Chinese  persons.  Among  these  acts  were  such  sections 
of  the  Act  of  September  13,  1888,  as  were  not  dependent 
for  their  existence  on  the  ratification  of  the  treaty  of  1894 
which  China  failed  to  ratify.  These  sections — subse- 
quently re-enacted  by  the  Acts  of  1902  and  1904 — carried, 
among  others,  provisions  permitting  the  return  of  Chinese 
laborers  to  the  United  States  within  the  period  of  one  year 
from  departure  therefrom  on  the  production  by  them 
of  a certificate  of  return  issued  by  the  proper  Chinese 
inspector  in  the  United  States  on  proof  that  such  la- 
borers had  a lawful  wife  or  child  or  parent  in  the  United 
States  or  property  therein  of  the  value  of  $1,000.00  or 
debts  of  like  amount  due  them  and  pending  settlement — 
which  certificate  was  to  constitute  the  sole  evidence  of 
their  right  to  return. 

The  Act  of  1892  was  not  limited  to  continuing  in  force 
laws  prescribing  the  evidence  by  which  laborers  and  per- 
sons other  than  laborers  of  Chinese  nationality  may  prove 
their  right  to  return  to  or  enter  the  United  States.  Its 
main  purpose  was  to  provide  for  the  registration  of 
Chinese  laborers  in  the  United  States;  such  registration 
to  be  completed  within  one  year  after  the  passage  thereof. 
The  time  wherein  registration  might  be  completed  was 
extended  in  section  6 of  the  amendatory  Act  of  November 
3,  1893,  to  six  months  after  the  passage  of  the  act,  and 

1621  Op.  Atty.-Gen.,  1894. 

17See  Appendix. 


564  Tpie  Exclusion  and  Expulsion  of  Aliens. 

provided  further  that  no  Chinese  person  heretofore  con- 
victed in  any  court  of  the  states  or  territories  of  the 
United  States  of  a felony  should  be  permitted  to  avail  him- 
self of  the  opportunity  offered  to  law-abiding  Chinese 
laborers. 

In  addition  to  prescribing  the  evidence  by  which  a 
Chinese  laborer  was  obliged  by  the  above-cited  section 
to  establish  his  right  to  remain,  the  following  provision, 
setting  out  the  method  by  which  Chinese  persons  return- 
ing to  the  United  States  must  establish  the  mercantile 
status  on  which  their  right  to  enter  was  based,  appears 
in  section  2 of  said  amendatory  act:  “He  shall  establish 
by  the  testimony  of  two  credible  witnesses  other  than 
Chinese  the  fact  that  he  conducted  such  business  as  here- 
inbefore defined  for  at  least  one  year  before  his  departure 
from  the  United  States,  and  that  during  such  year  he  was 
not  engaged  in  the  performance  of  any  manual  labor, 
except  such  as  was  necessary  in  the  conduct  of  his  busi- 
ness as  such  merchant,  and  in  default  of  such  proof  shall 
be  refused  landing.” 

These  provisions  were  at  once  strongly  attacked  on  the 
ground  that  their  effect  was  to  place  the  burden  of  prov- 
ing the  right  to  remain  on  Chinese  who  had  not  registered 
as  required  by  the  act  and  that  they  were  further  illegal  in 
that  they  designated  the  only  kind  of  evidence  by  which  the 
right  could  be  proven,  in  the  absence  of  registration.  But 
it  was  held  that  the  obligation  imposed  by  the  act  on 
Chinese  persons  to  prove  affirmatively  their  right  to  re- 
main in  the  United  States  was  consistent  with  the  prin- 
ciple that  every  legislature  has  the  inherent  power  to  pre- 
scribe the  evidence  which  shall  be  received,  as  well  as  the 
effect  thereof  in  its  courts,  and  that  the  act  was,  there- 
fore constitutional.18  This  reasoning  applies  with  equal 
force  to  section  2 of  the  Act  of  1893,  requiring  that  the 
mercantile  status  of  returning  Chinese  shall  be  proven 

isLi  Sing  v.  United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Fong  Yue 
Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 


Evidence. 


565 


by  two  reputable  witnesses  other  than  Chinese.19  The 
right  of  Congress  to  put  the  burden  of  proof  on  the  alien 
in  such  cases  is  no  longer  open  to  controversy;20  and  that 
burden  was  not  removed  by  the  provisions  of  section  1 of 
the  Act  of  April  29,  1902,  which  provide  that  all  laws  now 
in  force  prohibiting  and  regulating  the  coming  of  Chinese 
persons  and  persons  of  Chinese  descent  into  the  United 
States,  and  the  residence  of  such  persons  therein,  are  re- 
enacted, extended  and  continued  so  far  as  the  same  are 
not  inconsistent  with  treaty  obligations.21 

The  burden  of  proving  their  right  to  enter  or  remain  is 
upon  all  Chinese  seeking  to  exercise  such  right.22  Since  the 
exclusion  acts  provide  that  even  members  of  the  exempt 
classes  must  at  the  time  of  entry  furnish  the  evidence 
required  by  law  of  their  right  to  enter,  the  absence  of 
such  evidence  in  the  hands  of  an  applicant,  coming  here 
for  the  first  time  creates  a presumption — which  the  law 
has  made  absolute  by  prohibiting  the  introduction  of  any 
evidence  other  than  that  provided  by  the  certificate — that 
he  is  not  an  exempt  under  the  law.  Again,  where  the 
law  provides  that  Chinese  laborers  already  within  the 
country  shall  take  out  certificates  of  registration,  the  fail- 
ure of  one  of  the  laboring  class  to  have  the  certificate  in 
his  possession  raises  the  presumption  that  he  was  not 
lawfully  in  the  country  during  the  registration  period. 
But  in  this  case,  the  act  provides  that  the  absence  of  the 
certificate  may  be  satisfactorily  accounted  for  on  the 
proof  of  certain  facts  under  the  conditions  prescribed  by 
law.  And  the  act  of  1892  provides  that  any  Chinese  per- 

wlbid. 

2°Ah  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619;  Li  Sing  v. 
United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Fong  You  Ting  v.  United 
States,  149  U.  S.  698,  37  Law  Ed.  905;  United  States  v.  How  Way,  and 
three  similar  cases,  156  Fed.  247 ; Low  Foon  Yin  v.  United  States,  145 
Fed.  791;  United  States  v.  Sing  Lee,  125  Fed.  627;  United  States  v.  Lee 
Huen,  118  Fed.  442;  In  re  Sing  Lee,  54  Fed.  334. 

ziTom  Hong  v.  United  States,  193  U.  S.  517,  48  Law  Ed.  772;  Ah  How 
v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619. 

22Fong  Mey  Yuk  v.  United  States,  113  Fed.  898. 


5G6  The  Exclusion  and  Expulsion  of  aliens. 


son  arrested  under  its  provisions  shall  be  adjudged  to  be 
unlawfully  in  the  United  States  unless  he  establishes  the 
contrary  to  the  satisfaction  of  the  commissioner — thereby 
in  so  many  words  imposing  upon  the  prisoner  the  burden 
of  proving  that  his  presence  here  is  legal. 

The  burden  thus  imposed  is  the  result  of  the  general 
purport  of  the  law,  and  is  in  no  way  to  be  confused  with 
the  additional  obligation  which  lies  upon  Chinese  persons 
to  prove  the  existence  of  certain  specified  facts  by  the 
testimony  of  members  of  specified  classes  of  witnesses  in 
order  to  establish  the  right  claimed.  This  general  obliga- 
tion to  prove  the  right  to  remain  or  to  enter  is  constant, 
irrespective  of  whether  the  act  prescribes  in  certain  cases 
and  in  others  fails  to  prescribe  the  establishment  of  cer- 
tain subsidiary  facts  through  witnesses  specially  desig- 
nated, or  by  means  of  documentary  proof  in  the  form  of 
certificates  of  identity,  residence  or  return. 

Here,  as  in  the  immigration  act,  the  evidence  naturally 
falls  into  two  classes : that  prescribed  by  statute  and  that 
not  prescribed  by  statute. 

If  a Chinese  person  seeks  admission  on  the  ground  of 
membership  in  any  one  of  the  exempt  classes  not  only 
must  he  show  it  but  his  proof  must  be  made  by  one  par- 
ticular method,  viz:  by  a “section  6”  certificate;23  if  a la- 
borer, lie  must  show  he  is  returning  to  resume  a lawful 
residence  in  the  United  States,  and  here  again  the  proof 
must  be  of  a specified  nature,  viz : a “return  certificate 24 
if  a merchant  returning  to  a domicile  in  the  United  States 
he  must  show  by  the  testimony  of  two  credible  witnesses 
other  than  Chinese  that  he  is  entitled  to  enter  on  said 
grounds;25  and  if  the  applicant  claims  to  be  the  wife  or 
minor  child  of  a citizen  or  the  wife  or  minor  child  of 
an  exempt  the  status  of  the  husband  or  father  must  be 
proved  in  the  way  required  by  the  law,  and  the  relation- 

23Section  6,  Act  1882-1884. 

24Section  7,  Act  1888. 

25Section  2,  Act  of  1893;  Rule  15,  Chinese  Regulations — append. 


Evidence. 


567 


ship  claimed  must  be  established  affirmatively26 — all  of 
the  rules  cited  being  based  on  the  general  purport  and 
spirit  of  the  law. 

Regarding  a Chinese  person  arrested  within  the  coun- 
try: If  a laborer  he  must  produce  the  certificate  of  resi- 
dence prescribed  by  the  Act  of  1893  or  establish  that  his 
failure  to  secure  it  was  due  to  unavoidable  cause  and  that 
he  was  lawfully  in  the  country  prior  to  the  passage  of  that 
act,  the  latter  by  the  testimony  of  at  least  one  witness 
other  than  Chinese.27 

1.  Evidence  Not  Prescribed  by  Statute. 

(A.)  Of  Citizenship  of  Persons  of  Chinese  Descent. 

Where  the  claim  is  that  the  applicant  is  a citizen  of  the 
United  States  it  must  be  established  by  ordinary  affirma- 
tive evidence  which,  in  order  to  prevail,  must  satisfy  the 
appropriate  official  of  the  truth  of  the  facts  alleged.28 

The  acquisition  of  citizenship  by  persons  of  Chinese 
descent  is  possible  only  by  birth  in  the  United  States  while 
subject  to  the  jurisdiction  thereof.29  The  naturalization 
statutes,  in  designating  what  persons  could  be  naturalized, 
limited  the  description  to  free  white  persons  and  persons 
of  African  descent.  Inasmuch  as  the  power  to  naturalize 
is  vested  exclusively  in  Congress,30  and  Congress  has  thus 
limited  the  persons  who  can  be  naturalized,  it  has  been 
held  that  Chinese  persons,  and  Mongolians  generally, 
cannot  acquire  citizenship  by  naturalization.31 

The  Act  of  1884  specially  forbade  the  further  naturali- 
zation of  Chinese  by  any  of  the  courts  of  the  United 

26Rule  9,  Chinese  Regulations. 

z^Section  6,  Act  of  1892,  as  amended  by  section  1,  Act  of  1893. 

28Rule  16,  Chinese  Regulations,  Append. 

29United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  42  Law  Ed.  890. 

so  Ibid. 

siUnited  States  v.  Wong  Kim  Ark,  supra;  Fong  Yue  Ting  v.  United 
States,  149  U.  S.  698,  37  Law  Ed.  905. 


568  The  Exclusion  and  Expulsion  of  Aliens. 

States  ;32  but  the  use  of  the  word  “further”  cannot  be  con- 
strued to  imply  that  the  naturalization  of  Chinese  by  such 
courts  prior  to  the  passage  of  the  act  was  valid  in  the 
face  of  the  positive  limitation  as  to  race  contained  in  the 
naturalization  laws.  Its  insertion  in  the  provision  can 
hardly  be  given  more  significance  than  is  to  be  derived  from 
the  fact  that  prior  to  the  time  of  the  passage  of  the  act  of 
which  it  forms  a part  the  United  States  courts  had,  in 
several  instances  conferred  the  oath  of  citizenship  and 
allegiance  on  Chinese  persons  in  the  manner  and  form 
prescribed  by  the  naturalization  laws.  The  first  section 
of  the  fourteenth  amendment  of  the  Constitution  was 
construed  by  the  Supreme  Court  in  the  Wong  Kim  Ark 
case  to  mean  that  birth  occurring  within  the  territorial 
limits  of  the  United  States  of  Chinese  parents  residing 
here  at  the  time  was  sufficient  to  impose  on  the  person 
so  born  the  character  of  a citizen  of  the  United  States. 
But  the  court  held  that  the  only  method  by  which  Chinese 
persons  can  acquire  United  States  citizenship  is  by  virtue 
of  such  birth.  Therefore,  proof  of  citizenship  in  Chinese 
deportation  cases  means  no  more  or  less  than  proof  of 
birth  in  the  United  States. 

In  the  case  of  Chin  Bak  Kan33  it  was  claimed  by  the 
defendant  in  deportation  proceedings  that  he  was  a citizen 
of  the  United  States,  and  that,  inasmuch  as  the  Chinese 
exclusion  acts  gave  the  power  to  commissioners  to  pass 
upon  the  right  of  Chinese  persons  to  remain  in  the  United 
States,  it  conferred  on  them  no  jurisdiction  over  American 
citizens.  But  the  court  said:  “It  is  thus  settled  that 
the  mere  claim  of  citizenship  on  the  part  of  the  defendant 
in  deportation  proceedings  cannot  oust  the  officers  pre- 
siding thereat  of  their  jurisdiction  to  pass  on  the  right 
of  the  defendant  claiming  citizenship  to  remain  in  the 
United  States,  and  furthermore  that  the  burden  of  proof 

32Section  14;  Fong  Yue  Ting  v.  United  States,  supra;  In  re  Gee  Hop, 
71  Fed.  274;  21  Op.  Atty.  Gen.  37;  21  Op.  Atty.  Gen.  581. 

33186  U.  S.  193,  46  Law  Ed.  1121. 


Evidence. 


509 


of  establishing  this  fact  placed  upon  Chinese  by  the  Act 
of  1892  is  not  removed  by  the  nature  of  the  contention. 
This  question  is  now  so  firmly  settled  as  to  be  no  longer 
open  to  controversy/’ 34  But  it  has  been  held  that  where 
the  physical  appearance  of  the  defendant  is  such  that  the 
court  cannot  be  sure  that  he  is  a Chinaman  the  burden 
rests  upon  the  Government  to  prove  his  Chinese  nation- 
ality.35 

The  nature  of  the  evidence  required  is  not  restricted  or 
designated  by  statute,  as  is  that  required  for  former  resi- 
dence or  for  proving  prior  mercantile  status  by  the  Act 
of  1892,  as  amended.  The  place  of  birth  of  persons  of 
Chinese  descent  may  be  proven  in  deportation  proceedings 
by  Chinese  or  other  witnesses,  like  any  other  fact  for  the 
proof  of  which  no  particular  kind  of  evidence  is  provided 
for  by  statute.36 

(1.)  Sufficiency  of  Evidence  to  Establish  Fact  of  Birth 
in  the  United  States. 

Evidence  uncontradicted,  direct,  positive  and  circum- 
stantial of  the  defendant’s  birth  in  this  country  is  suffi- 
cient to  show  his  right  to  remain  by  establishing  the  fact 
of  nativity,37  and  the  effect  of  evidence  marked  by  such 
qualities  is  not  lightly  to  be  overthrown.  Thus,  when  a 
Chinese  person  claims  to  have  been  born  in  the  United 
States  and  never  to  have  left  the  country,  and  when  he 
and  other  unimpeached  witnesses  testify  to  this  without 
contradiction,  and  other  persons  who  have  known  him  for 
years  testify  to  his  truthfulness  and  good  character,  such 

34Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121;  Yee 
Ging  v.  United  States,  190  Fed.  270;  Lim  Sam  v.  United  States,  189  Fed. 
534;  United  States  v.  Too  Toy,  185  Fed.  839;  Kum  Sue  v.  United  States, 
179  Fed.  370;  Yee  King  v.  United  States,  179  Fed.  368;  United  States  v. 
How  Way,  156  Fed.  247;  In  re  Lam  Jung  Sing,  150  Fed.  608. 

ssChee  Cue  Beng  v.  United  States,  184  Fed.  383;  United  States  v. 
Louie  Lee,  184  Fed.  651;  and  see  Moy  Suey  v.  United  States,  147  Fed.  697. 
seUnited  States  v.  Lee  Seick,  100  Fed.  398. 

37United  States  v.  Wong  Lung,  103  Fed.  794;  and  see  169  Fed.  565. 


570  The  Exclusion  and  Expulsion  of  Aliens. 

evidence  will  not  be  rebutted  by  tbe  testimony  of  one 
American  witness  tending  to  show  that  the  defendant  had 
previously  testified  that  he  was  born  in  China;38  and  so, 
too,  where  the  witnesses’  story  is  candid  and  consistent 
and  they  are  unimpeached.39  It  has  been  lately  held  that 
when  apparent  inconsistencies  exist  an  effort  should  be 
made  if  possible  to  harmonize  them  rather  than  to  impute 
a corrupt  motive  to  one  of  the  witnesses.40  Again,  the 
statement  of  witnesses  of  vouched  for  veracity  who  swear 
that  the  defendant  was  born  in  the  United  States  and  left 
for  China  when  young,  giving  the  name  of  the  street  where 
his  father  lived  and  where  petitioner  was  born,  and  the 
further  statement  of  a witness  that  the  latter  saw  the 
petitioner  in  China  after  he  left  the  United  States  and 
identified  him — all  of  which  testimony  was  positively  and 
apparently  truthfully  given,  is  sufficient  to  prove  that  the 
defendant  was  a United  States  citizen.41  And  when  the 
Chinese  testimony  shows  that  defendants  were  born  in  the 
United  States,  and  this  testimony  is  corroborated  by  that 
of  credible  white  witnesses  to  the  effect  that  they  were 
personally  acquainted  with  the  defendants  when  young, 
it  is  sufficient  to  prove  their  lawful  presence  in  the  United 
States.42  Again,  where  defendant  shows  a regular  certifi- 
cate on  which  is  based  his  right  to  be  in  the  United  States, 
testifies  that  he  is  the  person  named  therein,  and  is  cor- 
roborated by  other  Chinese  witnesses,  he  makes  out  a 
strong  prima  facie  case,  which  is  further  strengthened  by 
the  fact  that  his  story  is  pursuasive ; and  the  effect  of  this 
evidence  is  not  rebutted  by  the  fact  that  a certificate  bear- 
ing the  same  number  was  passed  through  another  immi- 
gration office  under  suspicious  circumstances.43 

On  the  other  hand,  it  has  been  held  that  where  the  testi- 

38United  States  v.  Jhu  Why,  175  Fed.  630. 

39Mar  Poy  v.  United  States,  189  Fed.  288. 

4oLim  Sam  v.  United  States,  189  Fed.  534. 

4iPang  Sho  Yin  v.  United  States,  154  Fed.  660. 

42United  States  v.  Lee  Wing,  136  Fed.  701. 

43United  States  v.  Wong  Ock  Hong,  179  Fed.  1004. 


Evidence. 


571 


mony  of  the  defendant,  several  other  witnesses,  and  one 
white  witness  tended  to  show  that  he  was  born  in  the 
United  States,  the  fact  that  he  was  shown  to  have  made  a 
previous  signed  statement  that  he  was  born  in  China, 
coupled  with  the  fact  that  the  judge  was  not  favorably 
impressed  with  the  white  witnesses’  manner  of  testifying, 
is  insufficient  to  prove  the  fact  of  birth  in  the  United 
States.44  It  is  apparent  that  in  the  face  of  such  serious 
discrepancies  in  the  testimony  on  the  vital  point  at  issue, 
there  is  nothing  left  to  do  but  deport — particularly  when 
the  evidence  as  to  birth  in  China  is  shown  positively  to 
have  come  originally  from  the  defendant’s  own  lips  ;45  and 
such  discrepancies  are  not  to  be  explained  away  by  trivial 
excuses,  such  as  that  when  the  impeaching  statement  was 
made  the  defendant  was  dazed  with  seasickness.46 

As  the  allegation  of  citizenship  of  a Chinese  person 
necessarily  includes  the  feature  of  residence  at  some  time 
or  other  in  the  United  States,  and  residence  in  turn  im- 
plies at  least  some  knowledge  of  this  country  and  its  lan- 
guage, the  fact  that  a returning  Chinese  person  paid  his 
head  tax  at  the  port  of  entry,  fails  to  submit  disinterested 
evidence  of  previous  residence  in  the  United  States  for 
twenty  years,  was  unfamiliar  with  the  English  language, 
and  had  no  acquaintance  with  the  environments  in  which 
it  was  claimed  he  had  resided  for  twenty  years,  was  held 
insufficient  to  establish  the  fact  of  birth  in  this  country.47 
The  mere  fact  that  a witness  testifying  as  to  birth  of  de- 
fendant in  the  United  States  alleges  that  defendant  was 
born  at  a certain  time  and  place,  unsupported  by  further 
details  concerning  the  facts  already  stated  will,  naturally, 

44United  States  v.  Wong  Du  Bow,  133  Fed.  326. 

45Yee  Ngoy  v.  United  States,  116  Fed.  333;  Lee  Ah  Yin  v.  United 
States,  116  Fed.  614. 

46Chew  Hing  v.  United  States,  133  Fed.  227 ; Ah  How  v.  United  States, 
193  U.  S.  65,  48  Law  Ed.  619. 

47United  States  v.  Leung  Sam,  114  Fed.  702;  see  also  Lee  Sing  Far  v. 
United  States,  94  Fed.  834;  In  re  Wong  Lin,  1 U.  S.  D.  Ct.  Hawaii  44; 
and  see  United  States  v.  Cut  Yong,  Vol.  I,  Ibid,  p.  104. 


572  The  Exclusion  and  Expulsion  op  Aliens. 


be  inconclusive  as  to  the  claim  of  citizenship;48  and  the 
corroboration  of  the  alleged  fact  of  birth  by  the  hearsay 
testimony  of  Chinese  witnesses  who  have  seen  defendant 
but  a few  times  is  likewise  held  insufficient  to  prove  his 
citizenship.49 

Uncontradicted  Testimony. 

That  the  testimony  given  by  defendant  and  his  wit- 
nesses is  uncontradicted  does  not  necessarily  prove  the 
fact  at  issue.50  That  it  is  the  nature  and  credibility  of  the 
testimony  given  and  not  the  simple  fact  of  failure  on  the 
part  of  the  Government  to  contradict  it  which  should  de- 
termine the  result  is  clear,  since  the  burden  of  proof  being 
put  by  law  on  the  alien,  the  exempt  status  which  he  claims 
must  be  established  as  required  by  statute.  It  may  be  that 
the  facts  which  he  alleged,  standing  alone,  do  not  satisfy 
the  presiding  officer  of  the  truth  of  the  ultimate  facts  to 
be  proven,  in  other  words  fail  to  constitute  a prima  facie 
case.  Under  these  conditions  it  cannot  avail  him 
that  his  insufficient  statement  is  uncontradicted.  The 
point  is  that  it  is  not  corroborated ; a fact  often  of  itself 
at  times  sufficient  to  justify  an  excluding  decision.51 
Again,  it  is  possible  for  designing  aliens  to  submit  alleged 
evidence  of  birth  in  the  United  States  of  a character  so 
remote  in  time  and  place  as  to  make  actual  contradiction 
of  the  specific  facts  alleged  an  impossibility  as  far  as  the 
Government  is  concerned.  The  true  test  is,  then,  the  na- 
ture and  credibility  of  the  evidence  irrespective  of  the  fact 
of  contradiction.  Thus,  when  the  evidence  of  a Chinese 
person  seeking  admission  to  the  United  States  on  the 
ground  of  American  citizenship,  which  although  unim- 
peached in  any  way  is  in  itself  inherently  improbable,  the 

48United  States  v.  Lee  Huen,  118  Fed.  442. 

*9Gee  Fook  Sing  v.  United  States,  49  Fed.  146. 

so  in  re  Jew  Wong  Low,  91  Fed.  240. 

5i In  re  Louie  You,  97  Fed.  580. 


Evidence. 


573 


general  rule  that  uncontradicted  evidence  should  control 
the  decision  of  the  court  should  not  apply.52 

Aside  from  the  class  necessarily  excluded  from  the  op- 
eration of  the  exclusion  and  immigration  acts  by  virtue 
of  citizenship  in  the  United  States,  are  Chinese  merchants, 
students,  and  others  allowed  by  treaty  or  statutes  relat- 
ing to  the  admission  of  Chinese,  and  other  aliens  not  of 
that  nationality  whose  admission  into  the  United  States 
is  not  prohibited  by  the  acts  on  immigration.  As  in  the 
case  with  Chinese  who  claim  the  right  to  enter  or  remain 
on  the  ground  of  American  citizenship,  the  burden  of 
proof  is  on  all  Chinese  except  those  coming  here  in  a diplo- 
matic capacity  together  with  their  suites  and  servants.53 
Similarly  in  the  cases  of  all  Chinese  defendants  in  depor- 
tation proceedings,  uncontradicted  evidence  is  not  binding 
on  the  court,54  even  though  defendant’s  claim  is  supported 
by  as  many  as  three  reputable  Chinese  merchants  whose 
testimony  is  unimpeached  in  any  way;55  and  here,  too, 
the  fact  that  the  evidence  is  of  itself  of  such  a nature 
as  to  be  incontrovertible  by  the  Government  constitutes 
no  objection  to  the  deportation  of  the  defendant.56 

(B.)  Proof  of  Marital  or  Filial  Relationship. 

If  the  claim  to  admission  is  that  the  applicant  is  the 
wife  or  minor  child  of  a person  of  Chinese  descent  who  is 

52Quock  Ting  v.  United  States,  140  U.  S.  417,  35  Law  Ed.  501. 

53Ah  How  v.  United  States,  193  TJ.  S.  65,  48  Law  Ed.  619;  Li  Sing  v. 
United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Fong  You  Ting  v.  United 
States,  149  U.  S.  698,  37  Law  Ed.  905;  United  States  v.  Chin  Ken,  183 
Fed.  332;  United  States  v.  Yee  Gee  You,  152  Fed.  157;  Low  Foon  Yin  v. 
United  States,  145  Fed.  791;  Yee  Yuen  v.  United  States,  133  Fed.  222; 
Lee  Yue  v.  United  States,  133  Fed.  45;  United  States  v.  Ling  Lee,  125  Fed. 
627;  United  States  v.  Lee  Huen,  118  Fed.  442;  United  States  v.  Leung 
Sam,  114  Fed.  702;  United  States  v.  Chun  Hoy,  111  Fed.  899;  United 
States  v.  Lung  Hong,  105  Fed.  188. 

^United  States  v.  Lee  Huen,  118  Fed.  442;  Quong  Sue  v.  United  States, 
116  Fed.  316 ; Lee  Sing  Far  v.  United  States,  94  Fed.  834. 

65Woey  Ho  v.  United  States,  109  Fed.  888. 

seKum  Sue  v.  United  States,  179  Fed.  370. 


674  The  Exclusion  and  Expulsion  of  Aliens. 

a citizen  of  the  United  States  or  of  a member  of  the  exempt 
classes  the  fact  of  such  relationship  must  be  proven  in  the 
ordinary  manner  to  the  satisfaction  of  the  inspecting  offi- 
cers; but,  of  course,  the  authorities  must  be  satisfied  that 
the  husband  or  father  is  fully  qualified  to  enter  or  remain 
in  this  country.®7 

(C.)  Proof  of  Prior  Mercantile  Status  During  Registra- 
tion Period.58 

As  before  pointed  out  the  Act  of  1892,  as  amended  by 
that  of  1893  provides  that  as  to  both  Chinese  merchants 
and  laborers  the  evidence  of  witnesses  other  than  Chinese 
is  required  to  prove  as  to  the  first  their  right  to  return  to 
the  United  States,  and  as  to  the  second  their  right  to  re- 
main therein.  The  provisions  as  to  registration  therein 
contained  are  obligatory  on  laborers  only,  but  any  Chinese 
person  other  than  a laborer  having  the  right  to  be  and 
remain  in  the  United  States  was  thereby  privileged  to  re- 
quest a certificate  of  registration  as  evidence  of  such 
light.59  While,  therefore,  the  right  of  a Chinese  laborer 
to  remain  in  the  United  States  could,  after  the  passage  of 
the  act  as  amended,  be  proved  in  the  absence  of  the  cer- 
tificate only  as  provided  by  that  act,  to  wit,  by  proof  of 
good  reason  why  he  had  not  obtained  a certificate  and  by 
further  proof  of  residence  in  the  United  States  prior  to 
May  5,  1892,  by  at  least  one  credible  witness  other  than 
Chinese,  the  last-named  limitation  is  not  prescribed  as  a 
mode  of  proving  the  mercantile  status  of  a Chinese  person 
whose  right  to  remain  has  been  questioned  in  deportation 
proceedings.  Thus  it  has  been  held  that  the  fact  that  a 
Chinese  person  has  been  engaged  in  mercantile  pursuits 
may  be  proven  by  Chinese  witnesses.60  But  where  the 
right  to  enter  the  United  States  is  based  on  the  mercan- 

57See  Chinese  Regulations,  Rule  9,  Append. 

ssSee  post,  pp.  584,  587. 

6 9 Section  6. 

eoUnited  States  v.  Louie  Yuen,  128  Fed.  522. 


Evidence. 


575 


tile  status,  and  inasmuch  as  the  Act  of  1893  in  its  second 
section  provides  that  this  status  shall  be  established  by  the 
testimony  of  two  credible  white  witnesses,  the  provisions 
of  the  statute  must  be  strictly  followed,  and  in  the  absence 
of  such  evidence,  other  proof  whereby  the  mercantile 
status  is  sought  to  be  established  is  insufficient.61  Of 
course,  where  the  right  to  remain  in  the  United  States 
is  the  question  at  issue,  the  testimony  of  white  witnesses, 
although  not  required  by  statute,  is  admissible  as  well  as 
often  desirable.  Thus,  where  the  testimony  showed  with- 
out contradiction  and  by  disinterested  witnesses  other 
than  Chinese  that  the  defendants  had  been  in  the  United 
States  from  ten  to  thirty  years,  that  for  four  years  (1891- 
1895)  they  had  carried  on  a Chinese  grocery  known  by  a 
firm  title,  had  bought  and  sold  groceries,  and  had  kept 
books  of  account  under  articles  of  partnership,  this  was 
held  sufficient  to  prove  their  mercantile  status  ;62  and  again, 
Chinese  testimony  that  defendants  were  merchants  in  the 
United  States,  when  corroborated  by  the  testimony  of 
credible  white  witnesses  that  the  latter  had  known~de- 
fendants  as  the  children  of  persons  commonly  known  as 
and  reputed  to  be  Chinese  merchants,  their  lawful  pres- 
ence in  this  country  was  held  to  be  proven,63 

The  question  of  whether  the  statutory  rules  of  evidence 
prescribed  by  the  act  apply  to  cases  of  Chinese  persons 
who,  since  the  registration  period  have  lost  their  mercan- 
tile status  and  have  become  laborers  or  who  are  merchants 
at  the  time  of  their  arrest  subsequent  to  the  expiration 
of  the  registration  period,  although  they  were  laborers  dur- 
ing that  period,  will  be  more  fully  considered  in  the  sec- 
tion entitled  “Evidence  available  in  the  absence  of  cer- 
tificate.” 64 

6i In  re  Lung,  also  In  re  Yue  Soon,  61  Fed.  641. 

62Tom  Hong  v.  United  States,  193  U.  S.  517,  48  Law  Ed.  772. 

63United  States  v.  Lee  Wing,  136  Fed.  701. 

64 Post  p.  584,  587. 


576  The  Exclusion  and  Expulsion  of  Aliens. 

2.  Evidence  Prescribed  by  Statute. 

(A.)  In  General. 

This  evidence  consists  of 

(1)  Documentary  proof  in  the  form  of  certificates  of 
entry  issued  under  section  6 of  the  Act  of  1882  as  amended 
by  that  of  1884  to  members  of  the  exempt  classes  of  Chi- 
nese coming  to  the  United  States  for  the  first  time,  and 
commonly  known  as  section  6 certificates;  certificates  of 
return  provided  by  section  7 of  the  Act  of  September  13, 
1888,  to  be  issued  to  Chinese  laborers  lawfully  in  this 
country  desirous  of  leaving  it  for  a temporary  visit  to 
China;  and  certificates  of  registration  or  residence  pro- 
vided by  the  Act  of  May  6,  1882,  as  amended  by  that  of 
November  3,  1893,  issued  to  Chinese  laborers  already  in 
the  country  in  order  to  constitute  permanent  and  definite 
proof  of  their  right  to  remain;  and  finally  the  certificates 
prescribed  in  the  Treaty  of  1894. 

(2)  Proof  by  testimony,  other  than  that  contained  in 
certificates,  of  designated  facts  coming  from  persons  of  a 
designated  class,  such  as  the  proof  by  at  least  one  credible 
witness  other  than  Chinese  of  prior  residence  in  this 
country  (required  by  section  6 of  the  Act  of  1892  as 
amended) ; of  all  laborers  found  without  the  certificate  of 
registration  prescribed  by  that  act;  and  proof  of  prior 
mercantile  status  in  this  country  by  two  credible  witnesses 
other  than  Chinese  required  of  Chinese  persons  seeking 
admission  on  the  claim  of  having  been  formerly  engaged 
in  this  country  as  merchants. 

(B.)  Certificates — As  Evidence  of  the  Right  of  Holder 
to  Enter  or  Remain. 

Certificates  of  identity  and  certificates  of  registration 
differ  as  much  with  regard  to  their  evidential  effect  as  to 
the  rights  which  they  confer  on  their  respective  holders  as 
they  do  with  regard  to  the  purposes  for  which  they  were 
issued. 


Evidence. 


577 


(1.)  “Section  6”  Certificates. 

The  “section  6 certificates’’  and  the  “return  certificates” 
issued  first  under  the  Act  of  1882  were  intended,  the  first 
for  the  purpose  of  identifying  Chinese  persons  of  the 
exempt  classes  on  leaving  China  for  the  United  States  in 
order  that  on  their  arrival  at  the  ports  of  this  country 
they  might  be  identified  as  belonging  to  those  classes; 
the  second  for  the  purpose  of  identifying  on  their  return 
Chinese  laborers  leaving  the  United  States  temporarily 
animo  revertendi.  By  the  Act  of  1884  it  was  provided65 
that  the  certificate  of  identity  should  be  the  sole  evidence 
whereby  the  holders  thereof  might  establish  their  right  of 
entry  into  the  United  States ; but  said  certificate  might  be 
controverted  and  the  facts  therein  stated  disproved  by 
the  United  States  authorities.66  It  was  also  provided 
that  the  return  certificate  of  the  outgoing  laborer  was  to 
constitute  on  return  the  only  evidence  of  his  right  of  re- 
entry. The  Supreme  Court  held,  however,  that  the  Act 
of  1882  as  amended  was  not  applicable  to  Chinese  laborers 
who  were  living  in  the  United  States  on  March  17,  1880, 
the  date  of  the  ratification  of  the  treaty  with  China, 
( whereby  it  was  first  agreed  that  the  United  States  should 
restrict  the  immigration  of  Chinese  laborers)  and  who 
had  left  before  the  passage  of  the  Act  of  May  6,  1882, 
and  remained  out  of  the  United  States  until  after 
July  5,  1884.67  This  Supreme  Court  decision  was  fol- 
lowed by  another  denying  the  application  of  the  evi- 
dential effect  of  the  lack  of  the  certificate  to  Chinese 
laborers  who  left  the  United  States  before  the  Act  of 
July  5,  1884  was  passed.68  Nor  does  the  “section  6 certifi- 
cate” of  identity  constitute  the  only  evidence  on  which 
the  wives  and  children  of  Chinese  merchants  commercially 

esSee  Appendix. 

^Section  6. 

eschew  Heong  v.  United  States,  112  U.  S.  536,  28  Law  Ed.  770;  United 
States  y.  Chu  Chee,  93  Fed.  797 ; In  re  Chin  A On,  18  Fed.  506. 

esUnited  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  31  Law  Ed.  591. 


578  The  Exclusion  and  Expulsion  of  Aliens. 


domiciled  in  the  United  States  can  base  their  right  to 
enter,69  in  the  sense  at  least  that  they  shall  not  be  allowed 
to  prove  the  right  in  any  other  way;  particularly  in  view 
of  the  fact  that  such  persons  were  not  specifically  desig- 
nated in  the  Treaty  of  1880  as  members  of  the  privileged 
classes,  the  treaty  being  construed  to  mean  that  the  right 
to  enter  guaranteed  thereby  to  members  of  the  exempt 
classes  must  necessarily  include  the  right  of  their  wives 
and  minor  children  to  participate  in  the  privilege.70 

(2.)  Laborer’s  aReturn”  Certificate. 

Section  7 of  the  Act  of  September  13,  1888,  provides 
for  the  temporary  departure  and  return,  under  conditions, 
of  Chinese  laborers ; and  this  right  was  specially  confirmed 
by  Article  II  of  the  treaty  of  December  8,  1894.  The  act 
provides  that  such  laborers  shall  be  given  a return  certifi- 
cate, “which  shall  be  the  sole  evidence  gben  to  such  per- 
son of  his  right  to  return,”  but  that  if  it  “be  transferred  it 
shall  become  void  and  the  person  to  whom  it  was  given 
shall  forfeit  his  right  to  return  to  the  United  States,”  and 
that  no  Chinese  laborer  shall  be  permitted  to  re-enter  the 
United  States  without  producing  the  return  certificate  to 
the  proper  officer. 

Thus  it  is  settled  law  to-day  that  certificates  of  return 
and  certificates  of  identity  constitute  the  sole  evidence  of 
the  right  of  the  holder  to  re-enter,  or  enter  the  United 
States  for  the  first  time,71  and  that  the  absence  thereof  in 
hands  of  the  applicant  in  either  case  renders  him  liable  to 
deportation.72  It  is  equally  well  settled  that  such  certifi- 
cates constitute  only  prima  facie  evidence  of  the  holder’s 

69United  States  v.  Gue  Lim,  176  U.  S.  549,  44  Law  Ed.  544. 

70  Ibid. 

7iWan  Shing  v.  United  States,  140  U.  S.  424,  35  Law  Ed.  503;  United 
States  v.  Pin  Ewan,  100  Fed.  609;  United  States  v.  Cbu  Chee,  93  Fed. 
797;  In  re  Wo  Tai  Li,  48  Fed.  668;  Case  of  Limited  Tag,  21  Fed.  789. 

72Mar  Bing  Guey  v.  United  States,  97  Fed.  576. 


Evidence. 


579 


right  to  remain.73  This  appears  from  the  acts  them- 
selves.74 But  to  constitute  such  prima  facie  evidence  their 
contents  must  conform  strictly  to  the  requirements  of  the 
statute;75  and  if  entrance  is  allowed  a Chinese  person  not 
a laborer  on  a defective  certificate  who  after  entry  becomes 
a merchant,  he  may  be  deported  in  spite  of  having  exer- 
cised acts  incidental  to  the  mercantile  status  for  seventeen 
months.76  Nor  do  defective  certificates  constitute  evidence 
of  the  right  to  enter  or  remain,  for  this  right  is  made  by 
law  to  depend  on  the  possession  of  a certificate  executed 
in  the  form  prescribed  by  statute77  and  by  the  authority 
designated  in  the  act  ;78  and  the  fact  that  an  official  of  the 
Government  allows  a Chinese  person  to  land  in  the  United 
States  without  presenting  any  certificate  at  all  is  not 
prima  facie  evidence  of  his  right  to  remain.79  And  the 
prima  facie  evidence  afforded  by  the  contents  of  the  “sec- 
tion 6 certificate’’  that  the  holder  is  a merchant  is  rebutted 
by  the  fact  that  he  entered  upon  manual  labor  imme- 
diately after  being  admitted  into  the  United  States.80 
But,  while  the  prima  facie  proof  constituted  by  a certifi- 
cate issued  in  accordance  with  Article  II  of  the  treaty 
of  December  8,  1894  may  be  overcome  by  proper  evidence 
and  may  not  have  the  effect  of  a judicial  determination, 
being  made  in  conformity  to  the  treaty,  and  the  holder  has 
been  duly  admitted  to  a residence  in  this  country,  he  can- 
not be  deported  on  the  ground  of  wrongfully  entering  the 

73Wan  Shing  v.  United  States,  140  U.  S.  424,  35  Law  Ed.  503;  Lew  Quen 
Wo  v.  United  States,  184  Fed.  685;  United  States  v.  Ng  Park  Tan,  86 
Fed.  605;  United  States  v.  Yong  Yew,  83  Fed.  832. 

^Section  6 of  the  Act  of  1882;  section  7 of  the  Act  of  September  13, 
1888. 

75Cheung  Pang  v.  United  States,  133  Fed.  392;  United  States  v.  Yong 
Yew,  supra. 

76United  States  v.  Pin  Kwan,  supra. 

77Cheung  Pang  v.  United  States,  supra. 

78United  States  v.  Mock  Chew,  54  Fed.  490. 

79Mar  Bing  Guey  v.  United  States,  supra. 

89United  States  v.  Ng  Park  Tan,  86  Fed.  605;  United  States  v.  Young 
Yew,  83  Fed.  832. 


580  The  Exclusion  and  Expulsion  of  Aliens. 

United  States  upon  a fraudulent  certificate  unless  there  is 
some  competent  evidence  to  overcome  the  legal  effect  of 
the  document.81 

(3.)  Certificates  of  Registration  or  Residence. 

The  certificate  of  registration  or  residence  issued  under 
the  Act  of  1892,  as  amended,  differs  in  essential  particu- 
lars from  the  “section  6 certificate”  of  identity,  or  the  “re- 
turn certificate”  authorized  by  the  Acts  of  1882  and  1884, 
and  the  Act  of  1888.  Whereas  the  possession  of  the  former 
constitutes  at  best  only  prima  facie  evidence  of  the  right 
of  the  holder  to  enter  the  United  States,  and  constitutes 
the  only  evidence  on  which  such  right  may  be  supported, 
the  possession  of  the  latter  in  the  hands  of  him  to  whom  it 
was  issued  by  lawful  authority  is  conclusive  evidence  of 
the  right  to  remain,82  and  its  absence  constitutes  only 
prima  facie  proof  that  the  person  failing  to  present  it  is 
not  lawfully  in  the  United  States.83  Rights  which  arise 
from  the  lawful  possession  of  a certificate  of  registration 
may,  however,  be  forfeited  by  subsequent  illegal  acts  of 
the  holder ; thus,  if  a Chinese  laborer,  registered  in  accord- 
ance with  the  Act  of  1892,  leaves  the  United  States  with- 
out first  obtaining  the  return  certificate  prescribed  by  the 
Act  of  1888,  and  re-enters  by  other  than  a regular  port  of 
entry  the  certificate  is  ineffective  in  his  hands.84  What 
stress  the  courts  place  on  the  final  and  conclusive  effect 
of  the  certificate  of  registration  is  shown  in  the  recently 
decided  case  of  Lew  Quen  Wo  v.  United  States,85  where  the 
court  held  that  the  effect  thereof  was  to  register  the 
solemn  act  of  the  United  States  Government,  and  the  in- 
tention was  to  furnish  conclusive  evidence  of  the  right 

siLiu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

82 In  re  Tom  Hon,  149  Fed.  v842. 

83Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

84United  States  v.  Tuck  Lee,  120  Fed.  989;  Jew  Sing  v.  United  States, 
97  Fed.  582. 

85184  Fed.  685. 


Evidence. 


581 


of  the  holder  to  remain  in  the  United  States,  such  evi- 
dence not  to  be  subject  to  collateral  attack;86  and  so  con- 
clusive is  the  effect  of  such  a certificate  considered  that 
it  has  been  held  that  a United  States  Commissioner  has 
not  the  right  to  cancel  it  on  the  ground  that  it  was  ob- 
tained by  fraud.87'  And  where  a Chinese  alien  after  being 
ordered  deported  in  a judgment  in  habeas  corpus  proceed- 
ings gave  bail  but  failed  to  appear,  and  was  afterwards 
apprehended  for  the  purpose  of  carrying  out  the  judg- 
ment, and  was  found  to  have  been  granted  a certificate  of 
residence  under  the  Act  of  1893,  the  court  held  that  the 
certificate  constituted  conclusive  proof  of  his  right  to  re- 
main in  the  United  States,  and  was  not  subject  to  collat- 
eral attack  in  a proceeding  to  enforce  a judgment  of  de- 
portation rendered  against  him  before  the  registration 
law  took  effect.88  The  effect  of  the  certificate  is,  needless 
to  say,  based  on  the  assumption  that  it  is  genuine;  and 
when  a United  States  Commissioner  finds  that  the  cer- 
tificate on  which  the  defendant  bases  his  right  to  remain 
is  spurious,  the  defendant  is  not  entitled  to  his  discharge 
on  habeas  corpus .89  It  may  be  added  in  passing  that  a 
Chinese  laborer  who  has  acquired  a certificate  under  the 
Act  of  May  5,  1892,  does  not  need  to  register  under  that 
of  November  3,  1893 ; and  that,  the  failure  to  produce  the 
latter  may  consequently  be  cured  by  producing  the 
former.90 

(C.)  Evidence  Available  in  Absence  of  Certificate. 

As  has  been  already  pointed  out,  where,  as  in  the  Act 
of  1888,  the  law  makes  possession  of  certificates  by 
Chinese  persons  the  sole  evidence  of  the  right  to  enter  or  re- 
turn, or  where,  as  under  the  Act  of  1893,  the  law  provides 

86Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

In  re  See  Ho  How,  101  Fed.  115. 

88 In  re  Tom  Hon,  149  Fed.  842. 

89Ex  parte  Lung  Wing  Wun,  161  Fed.  211. 

90United  States  v.  Jung  Jow  Tow,  110  Fed.  154. 


582  The  Exclusion  and  Expulsion  of  Aliens. 


the  kind  of  evidence  necessary  to  establish  the  right  in  the 
absence  of  certificates  of  registration  and  residence,  no 
other  evidence  in  the  first  instance,  and  no  evidence  of  a 
different  nature  from  that  prescribed  by  statute  in  the 
second  will  suffice  to  establish  the  right.  This  is  the  gen- 
erally accepted  rule ; although  as  has  been  seen,  it  was  sub- 
ject to  relaxation  when  attempt  was  made  to  strictly 
apply  it  under  the  Acts  of  1882  and  1884,  the  reason  being 
that  the  acts  could  not  be  construed  to  apply  to  persons 
who,  under  the  circumstances,  never  had  an  oppor- 
tunity to  obtain  the  certificate;91  or  when  there  was  abso- 
lute proof  that,  once  having  been  lawfully  obtained,  it  had 
been  lost  or  stolen.92  And  just  as  it  was  impossible  for  a 
Chinese  laborer  residing  in  the  United  States  on  the  date 
of  the  treaty  of  1880,  who  had  left  the  United  States  on 
a visit  to  China  before  the  passage  of  the  Act  of  1882  to 
secure  the  return  certificate,  which,  under  that  act,  was  to 
be  issued  in  this  country,  so  was  it  equally  impossible  for 
a Chinese  merchant  not  residing  in  China  at  the  time  of 
the  passage  of  the  Act  of  1882,  and  who  arrived  in  the 
United  States  from  the  foreign  country  of  his  residence, 
to  procure  the  certificate  of  identity  required  by  this 
act,  inasmuch  as  that  particular  certificate  could  be  is- 
sued only  by  the  Chinese  government.  In  such  a case  it 
was  held  that  the  mercantile  status  of  the  latter  could  be 
proven  by  parole  evidence,93  as  well  as  where  the  appli- 
cant for  admission  left  China  for  Honolulu  but  was  for 
some  reason  brought  first  to  a port  of  the  United  States.94 

In  such  cases  the  main  question  is  whether  parole  or 
other  evidence  is  permissible,  and  the  second  of  what  shall 
such  evidence  consist.  The  rule  regarding  secondary  evi- 
dence was  in  effect  that  it  would  be  allowed  only  in  such 

9iChew  Heong  v.  United  States,  112  U.  S.  536,  28  Law  Ed.  770;  In  re 
Ah  Quan,  21  Fed.  182;  In  re  Leong  Yick  Dew,  19  Fed.  490;  In  re  Chin  A 
On  et  al.,  18  Fed.  506. 

»2United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  31  Law  Ed.  591. 

ssCase  of  the  Chinese  Merchant,  13  Fed.  605. 

947?i  re  Ho  King,  14  Fed.  724. 


Evidence. 


583 


extraordinary  and  exceptional  cases  as  could  not  be 
deemed  to  have  been  within  the  legislative  prohibition; 
as  to  all  other  cases  it  was  unquestionably  the  intention 
of  Congress  to  exclude  secondary  evidence,  and  for  this 
reason  no  provision  was  made  as  to  what  kind  of  second- 
ary evidence  should  be  available.  It  follows  that  in  such 
cases  any  competent  evidence  bearing  on  the  right  of 
entry  or  return  might  be  introduced.  And  this  must 
necessarily  result  in  all  cases  where  no  restriction  has 
been  placed  by  Congress  on  the  evidence  whereby  the  alien 
may  prove  his  right  to  enter  or  remain. 

Where  Claim  is  American  Citizenship . 

Occasional  difficulty  is  experienced,  however,  in  deter- 
mining whether  or  not  a restricting  provision  applies  to  a 
particular  case.  In  the  proof  of  citizenship,  set  up  as  the 
sole  and  fundamental  ground  of  the  right  to  re-enter 
(no  claim  to  mercantile  status  being  made)  it  is  plain  that 
the  provision  of  section  2 of  the  Act  of  1892  requiring  proof 
of  mercantile  status  by  at  least  two  credible  white  wit- 
nesses would  have  no  application.  So,  where  the  claim  of 
citizenship  is  made  by  a person  arrested  without  the  cer- 
tificate of  residence  required  by  section  6 of  the  Act  of 
1892. 

It  may  be  said  that  while  the  fundamental  ground  of  the 
right  to  remain  is  the  fact  of  having  been  born  in  the 
United  States,  the  establishment  of  this  fact  would  neces- 
sarily include  proof  of  former  residence — and  the  act  pro- 
vides that  such  residence  cannot  be  shown  by  testimony 
wholly  Chinese.  But  the  fact  of  residence,  proof  of  which 
is  thus  required  by  the  Act  of  1893,  is  ordinarily  the  main 
— and  in  truth  the  only  essential  fact — by  which  the  right 
to  remain  can  be  established;  whereas  if  proof  thereof  is 
presented  in  a case  where  the  right  to  remain  is  based 
on  the  citizenship  of  the  party,  it  can  only  be  in  the  nature 
of  proof  of  an  incident,  and — in  view  of  the  fact  that  birth 
itself  is  the  only  determinative  fact  of  citizenship  irrespec- 


584  The  Exclusion  and  Expulsion  of  Aliens. 

tive  of  residence — one  which  can  have  no  direct  bearing  on 
the  main  fact  to  be  proven.  Thus  the  courts  have  decided 
that  citizenship  may  be  proven  by  Chinese  testimony,  stat- 
ing that  the  requirement  that  a Chinese  person  claiming  to 
be  a merchant  who  seeks  to  re-enter  the  United  States 
must  prove  his  status  as  such  by  white  witnesses  is  a 
special  rule  of  evidence  and  does  not  apply  to  the  issue 
of  citizenship;95  and  where  the  claim  of  the  defendant 
that  he  was  a native  born  citizen  of  the  United  States  was 
supported  by  his  own  testimony,  consistent  and  explicit 
in  character,  and  giving  his  place  of  birth,  residence  at 
different  times,  place  of  attending  school,  and  other  ma- 
terial facts,  all  of  which  were  supported  and  corroborated 
by  the  testimony  of  an  uncle  and  cousin  and  wholly  un- 
contradicted, it  was  held  sufficient  to  prove  the  citizenship 
claimed.96  The  above  examples  seem  to  express  the  exist- 
ing law  on  the  subject,  although  there  are  other  decisions 
in  which  the  holding  that  the  defendant  has  proven  his 
American  citizenship  is  based  in  part  at  least  on  the  cor- 
roborative testimony  of  white  witnesses.97 

Where  Claim  is  Mercantile  Status  During  Registration 
Period — In  General. 

A situation  analogous  to  the  above  is  presented  by  the 
case  of  a Chinese  person  arrested  in  deportation  proceed- 
ings for  not  having  secured  a certificate  of  registration, 
and  who  claims  he  was  a merchant  at  the  time  the  act  went 
iuto  effect,  and  was,  therefore,  under  no  obligation  to  pro- 
cure the  same.  Such  a person,  if  in  fact  he  was  a mer- 
chant during  the  registration  period,  is  under  no  obliga- 
tion, on  reverting  to  the  status  of  laborer  after  that  period, 
to  procure  a certificate,  and,  as  a matter  of  fact,  could  not 
do  so  as  a laborer  because  the  act  limited  the  period  within 

95United  States  v.  Lee  Seick,  100  Fed.  398. 

seMoy  Suey  v.  United  States,  147  Fed.  697. 

97United  States  v.  Lee  Wing,  136  Fed.  701. 


Evidence. 


585 


which  such  certificates  were  procurable.98  But,  being  a 
laborer  found  without  such  certificate,  is  the  evidence  by 
which  he  is  to  prove  his  right  to  remain  subject  to  the  re- 
strictions of  the  act?  Bearing  in  mind  that  it  is  the 
former  residence  which  must  be  proven  by  the  evidence 
of  at  least  one  witness  other  than  Chinese,  it  would  seem 
that  the  restrictions  should  not  be  deemed  to  apply  to 
evidence  offered  to  prove  mercantile  status,  but  that,  on 
failure  to  prove  the  latter,  the  provision  of  the  statute 
should  apply.  There  is,  however,  a conflict  of  judicial 
opinion  on  this  point,  some  courts  holding  that  the  mer- 
cantile status  may  be  proven  by  Chinese  witnesses99  and 
others  that  residence  as  such  in  the  United  States  prior  to 
May  5,  1892,  must  be  proven  by  at  least  one  credible 
white  witness.100 

Registration  is  required  first  of  all  of  Chinese  laborers 
and  not  of  merchants.  In  the  case  of  laborers,  presence 
in  the  United  States  without  the  certificate  of  residence 
constituted  no  more  than  prima  facie  proof  that  they  were 
not  entitled  to  remain.1  This,  the  act  specially  provided, 
could  be  rebutted  by  proof  of  residence  in  the  United 
States  at  the  time  of  the  passage  of  the  act — and  this  was 
to  be  proven  by  at  least  one  credible  witness  other  than 
Chinese.  Not  so  with  Chinese  merchants ; for,  in  the  first 
place,  being  under  no  obligation  to  register,  the  evidential 
effect  of  the  absence  of  the  certificate  was,  as  to  them,  nil ; 
and,  as  to  merchants,  who  are  not  excluded  by  the  exclu- 
sion acts,  but  on  the  contrary,  are  expressly  permitted  to 
enter,  the  fact  of  their  presence  here  is  prima  facie  evi- 
dence of  their  right  to  remain,  subject,  of  course,  to  re- 
buttal by  the  Government.2 

ssUnited  States  v.  Leo  Won  Tong,  132  Fed.  190  ; In  re  Yew  Bing  Hi, 
128  Fed.  319;  United  States  v.  Louie  Yuen,  128  Fed.  422. 

^United  States  v.  Louie  Yuen,  supra. 

i°°United  States  v.  Yee  Gee  You,  152  Fed.  157. 

iFong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

2United  States  v.  Chin  Sing,  153  Fed.  590;  United  States  v.  Wong  Lung, 
103  Fed.  794. 


586  The  Exclusion  and  Expulsion  of  Aliens. 


(a.)  Where  the  Person  Arrested  is  a Merchant. 

If  the  person  arrested  on  the  ground  of  being  a laborer 
is  a merchant,  he  is  under  no  obligation  to  prove  residence 
prior  to  1893,  as  that  provision  applies  exclusively  to 
laborers.  If,  therefore,  the  claim  of  existing  mercantile 
status  is  raised,  this  would  seem  to  be  a preliminary  ques- 
tion for  the  court  to  decide,  as  there  is  no  provision  to  the 
effect  that  the  absence  of  the  certificate  is  conclusive  evi- 
dence of  a labor  status,  and  that  the  person  concerned 
can  prove  his  right  to  remain  only  by  showing  a prior  resi- 
dence. The  present  mercantile  status,  may,  then,  be  raised 
just  as  in  the  case  of  citizenship;  and  as  there  is  no  pro- 
vision of  law  restricting  or  imposing  limitations  on  the 
manner  in  which  this  is  to  be  proved  it  is  open  to  proof 
by  any  evidence  which  the  defendant  may  offer.  If  this 
proof  fails  he  is  then  necessarily  relegated  to  the  status 
of  laborer,  and  must  as  such  prove  prior  residence  in  the 
manner  provided  by  statute. 

(b.)  Where  the  Person  Arrested  is  a Laborer. 

There  seems  to  be  no  reason  why  a different  rule  should 
apply  as  to  the  mode  of  proving  prior  mercantile  status 
existing  during  the  period  of  registration.  Chinese  labor- 
ers were  registered  under  the  act  only  on  showing  proof 
sufficient  to  the  registering  officer  of  their  right  to  remain. 
Absence  of  the  registration  certificate  consequently  gave 
rise  to  the  presumption  of  non-residence  in  the  country 
at  the  time  of  registration;  and,  therefore,  the  Chinese 
laborer  arrested  without  a certificate  was  under  the  obli- 
gation of  rebutting  the  presumption  of  non-residence  and 
of  rebutting  it  by  testimony  prescribed  by  statute.  If, 
however,  the  allegation  of  mercantile  status  during  the 
registration  period  is  made  by  the  defendant,  here  again 
a preliminary  question  is  presented  to  the  commissioner; 
for,  if  at  the  time  the  defendant  was  in  fact  a merchant, 
not  being  under  the  obligation  to  register,  his  failure  to 
do  so  would  not  give  rise  to  the  presumption  that  he  was 


Evidence. 


587 


not  residing  in  the  United  States  during  the  registration 
period;  and  thus  the  obligation  of  rebutting  such  a pre- 
sumption could  not  exist.  Again,  the  failure  to  register, 
apart  from  the  philosophy  of  the  provision,  is  what  gives 
rise  to  the  obligation  to  rebut  the  effects  of  that  failure 
by  testimony  of  a designated  kind.  It  would  not  seem  to 
be  the  policy  of  the  law  to  impose  equal  obligations  on 
persons  who,  in  the  face  of  the  expressed  directions  of 
the  statute,  deliberately  failed  to  carry  them  out,  and 
those  who  have  omitted  to  perform  an  act  which  that  law 
expressly  provided  that  they  were  under  no  obligation 
to  perform. 

a.  Where  Original  Mercantile  Status  Terminated  Before 
Expiration  of  Begistration  Period. 

A different  case  is  presented  by  that  of  Chinese  laborers 
who  on  arrest  for  failure  to  register  present  bona  fide  cer- 
tificates of  identity  issued  to  them  as  merchants  under 
section  6 of  the  act  of  1882,  as  amended  by  the  Act  of  1884, 
who,  before  the  period  for  registration  had  ended,  lost 
their  mercantile  status  or  assumed  that  of  laborers.  As 
such  certificates  constitute  only  prima  facie  evidence  of 
the  mercantile  status  their  contents  are  of  course  re- 
butted by  the  established  fact  that  the  holders  are  no 
longer  merchants.  Having  lost  their  status  as  such  be- 
fore the  expiration  of  the  registration  period  the  act, 
which  specifically  includes  all  laborers,  must  include  them 
also ; and  the  mere  fact  that  they  were  merchants  at  some 
former  point  of  time  constitutes  no  defense.3  Proof  of 
such  former  status  would  in  such  case  be  immaterial  to 
the  issue,  and,  the  facts  being  shown,  the  validity  of  any 
defense  left  to  them  could  be  established  only  by  the 
method  applicable  to  other  Chinese  laborers. 

3Cheung  Him  Nin  v.  United  States,  133  Fed.  391;  Chain  Chid  Fong  v. 
United  States,  133  Fed.  154. 


588  The  Exclusion  and  Expulsion  of  Aliens. 


Wives  and  Minor  Children  of  Domiciled  Chinese  of  the 
Exempt  Classes. 

The  necessity  of  the  possession  of  certificates  of  identity, 
as  sole  evidence  of  their  right  to  admission  by  Chinese 
merchants  coming  to  the  United  States  has  already  been 
discussed.4  While  Congress  both  by  legislative  enactment 
2nd  by  treaty  has  provided  that  return  certificates  be 
issued  to  Chinese  laborers  and  that  no  other  evidence  of 
their  right  to  return  shall  be  admissible,  no  provision  was 
made  in  the  law  regarding  the  issuance  of  return  certifi- 
cates to  Chinese  merchants  who  depart  temporarily  from 
this  country.  It  was  thought  at  an  early  period  in  the 
history  of  the  Chinese  exclusion  acts  that  the  “section  6 
certificate”  must  be  considered  as  the  sole  evidence  of  that 
right,  but  the  decisions  of  the  courts  to  the  contrary5 
showed  the  need  of  special  legislation  on  this  point,  and 
the  existing  lack  was  supplied  by  the  Act  of  1893  requir- 
ing special  proof  of  mercantile  status  during  at  least  one 
year  preceding  the  date  of  departure.  The  controlling 
fact  in  allowing  such  merchants  to  return  without  pre- 
senting the  certificate  in  question  was  the  duly  proven 
domicile  and  mercantile  status  of  the  parties.  In  an  early 
case  the  presence  of  a Chinese  merchant  otherwise  entitled 
to  remain  in  the  United  States,  who  returned  from  a tem- 
porary visit  to  Canada,  was  held  to  be  lawful,  although  on 
re-entry  he  did  not  present  the  certificate  to  the  collector 
who  was  otherwise  satisfied  of  his  right  to  remain,  on  the 
ground  that  the  Act  of  1884  provided  that  “the  collector 
shall  in  person  decide  all  questions  in  dispute  with  regard 
to  the  right  of  any  Chinese  passenger  to  enter  the  United 
States;  and  his  decision  shall  be  subject  to  review  by  the 
Secretary  of  the  Treasury,  but  not  otherwise.”6 

The  nature  of  the  evidence  necessary  to  establish  the 

4 Ante,  p.  577. 

6Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340;  United 
States  v.  Gee  Lee,  50  Fed.  271. 

eUnited  States  v.  Lee  Hoy,  48  Fed.  825. 


Evidence. 


589 


right  to  enter  into  or  remain  in  the  United  States  of  per- 
sons not  directly  designated  by  treaty  or  statute  as  be- 
longing to  the  exempt  classes,  already  adverted  to,7  has 
been  the  subject  of  judicial  consideration  on  more  than 
one  occasion.  Reference  is  made  to  the  wives  and  minor 
children  of  Chinese  merchants  or  of  other  persons  who  by 
law  belong  to  the  exempt  classes.  The  right  of  such  per- 
sons to  enter  the  United  States  without  the  certificate  of 
identity  required  by  section  6 of  the  Act  of  1882  had  been 
repeatedly  denied,8  and  also  repeatedly  affirmed9  by  vari- 
ous lower  United  States  courts  before  which  it  came  for 
adjudication,  until  it  was  definitely  affirmed  by  the  Su- 
preme Court  in  the  case  of  United  States  v.  Gue  Lim.10  In 
this  case  the  wife  and  minor  children  of  a Chinese  mer- 
chant domiciled  in  the  United  States  had  been  allowed  to 
land  without  the  production  of  the  certificate.  They  were 
later  arrested  on  the  charge  of  being  laborers  who  had 
failed  to  register  as  required  by  the  Act  of  1893  and  there- 
fore without  certificate  of  registration,  and  without  any 
other  legal  right  or  authority  to  remain  in  this  country. 
Said  the  Court:  “It  is  impossible  to  presume  that  the 
treaty  of  1880  in  omitting  to  name  the  wives  of  those  who 
by  the  second  article  were  entitled  to  admission  meant 
that  they  should  be  excluded.  If  not  then  they  would  be 
entitled  to  admission  because  they  were  such  wives,  al- 
though not  in  terms  mentioned  in  the  treaty.”  In  com- 
menting on  the  fact  that  section  6 of  the  act  could  not  be 
construed  to  mean  that  wives  must  take  out  certificates 
of  identity  the  court  said : “The  section  assumes  that  ap- 
plicant for  a certificate  has  some  occupation  or  profession 

7 Ante,  p.  573. 

8 in  re  Li  Foon,  80  Fed.  881;  In  re  Lum  Lin  Ying,  59  Fed.  682;  In  re 
Wo  Tai  Li,  48  Fed.  668;  Case  of  the  Chinese  Wife,  21  Fed.  785;  In  re 
Ah  Quan,  21  Fed.  182.  ' 

Hn  re  Lee  Yee  Sing,  85  Fed.  635;  United  States  v.  Gue  Lim,  83  Fed. 
136;  In  re  Chung  Toy  Ho,  42  Fed.  398. 

10176  U.  S.  549,  44  Law  Ed.  544;  and  see  United  States  v.  Yee  Oung 
Yuen,  191  Fed.  28. 


590  The  Exclusion  and  Expulsion  of  Aliens. 


which  has  theretofore  been  pursued  at  some  place,  which 
is  not  the  case  here.”  And  again:  “To  hold  that  a cer- 
tificate is  required  in  this  case  is  to  decide  that  the  woman 
cannot  come  into  this  country  at  all,  for  it  is  not  possible 
for  her  to  comply  with  the  act,  for  she  cannot  in  any  event 
procure  the  certificate  even  by  returning  to  China.  She 
must  come  in  as  the  wife  of  the  domiciled  husband,  or  not 
at  all.  The  act  was  never  intended  to  accomplish  the  re- 
sult of  permanently  excluding  the  wife  under  the  circum- 
stances of  this  case,  and  we  think  that  properly  and  rea- 
sonably construed,  it  does  not  do  so.  If  we  hold  that  she 
is  entitled  to  come  in  as  the  wife  because  the  true  con- 
struction of  the  treaty  and  the  act  permits  it,  there  is  no 
provision  that  makes  the  certificate  the  only  proof  that 
she  is  such  wife.  In  the  case  of  the  minor  children  the 
same  result  must  follow  as  in  that  of  the  wife.” 

This  decision  shows,  not  only  that  the  wife  and  a minor 
child  of  a Chinese  person  belonging  to  any  one  of  the  ex- 
empt classes  are  themselves  not  excluded  from  entry  with- 
out a certificate  by  the  Act  of  1882,  but  that  the  fact  of 
the  marriage  or  parental  relation  may  be  proven  by  any 
evidence  available.  The  case  of  Lee  Lung  vs.  Patterson11 
in  which  the  right  of  entry  was  denied  presents  a some- 
what similar  state  of  facts,  but  the  excluding  decision  was 
based  on  entirely  different  grounds.  There  a domiciled 
Chinese  merchant  together  with  a second  wife  lawfully 
wedded  to  him  in  China,  although  the  first  wife  was  still 
living  as  such  at  the  time  of  their  arrival  in  the  United 
States,  and  accompanied  by  an  alleged  child  by  the  first 
wife,  sought  admission  to  this  country.  He  was  duly  ad- 
mitted, but  the  second  wife  and  child  although  provided 
with  section  6 certificates  issued  in  accordance  with  the 
third  article  of  the  treaty  of  December  8,  1894,  were  re- 
fused admission;  the  wife  on  the  ground  that  she  was 
not  a legal  wife  according  to  our  interpretation  of  the 

nl86  U.  S.  168,  46  Law  Ed.  1108. 


Evidence. 


591 


term;  and  that,  therefore,  the  reasons  on  which  the  Gue 
Lim  decision12  was  based  did  not  meet  her  case — the  child 
because  the  Secretary  of  the  Treasury  was  not  satisfied 
of  the  fact  of  her  identity  as  the  child  of  the  alleged 
father.  The  court  held  that  as  the  Act  of  August  18, 
1894,  vested  the  final  determination  as  to  the  right  of 
aliens  to  enter  the  United  States  under  any  law  or  treaty 
in  executive  officers,  the  judgment  of  the  district  court 
to  which  the  matter  had  been  brought  on  habeas  corpus 
that  it  was  without  jurisdiction  should  be  affirmed. 

The  difference  in  result  between  the  two  classes  lies 
largely  in  the  difference  between  the  remedies  available  to 
the  parties.  In  the  Gue  Lim  case  the  parties  were  ar- 
rested as  laborers  without  the  right  to  remain  in  the 
United  States.  The  proceedings  were,  therefore,  before  a 
United  States  commissioner,  and  included  the  right  of 
judicial  review  of  the  facts  on  appeal.  In  the  Lee  Lung13 
case  the  issue  was  the  right  to  enter,  not  to  remain  in 
the  United  States,  and  the  facts  on  which  the  issue  was 
based  were  not  subject  to  judicial  review.  The  question 
arose  as  to  the  sufficiency  of  the  certificate  held  by  the 
women.  It  was  admitted  that  it  constituted  at  best  but 
prima  facie  evidence  of  the  right  to  enter;  but  it  was 
claimed  that  the  collector  had  not  given  due  weight 
thereto.  The  court  held,  however,  that  even  if  the  col- 
lector had  disregarded  it  as  evidence  he  would  not  lose  his 
jurisdiction  thereby.  While  there  is  no  doubt  that  in 
excluding  the  alleged  daughter  the  decision  of  the  col- 
lector was  based  purely  on  his  finding  of  fact,  may  it  not 
be  said  that  in  holding  that  the  second  wife  was  not  enti- 
tled to  admission  as  such  he  went  beyond  his  jurisdiction 
in  passing  on  a question  of  law?  There  is,  however,  little 
doubt  as  to  the  correctness  of  his  conclusion  on  that  point, 
as  it  can  scarcely  be  presumed  that  either  the  treaty  of 
1880,  the  Act  of  1882,  or  the  Treaty  of  1894  meant  to  in- 

laUnited  States  v.  Gue  Lim,  176  U.  S.  549,  44  Law  Ed.  544. 

13Lee  Lung  v.  Patterson,  186  U.  S.  168,  46  Law  Ed.  1108. 


592  The  Exclusion  and  Expulsion  of  Aliens. 


elude  as  members  of  the  exempt  classes  persons  whose 
status  was  based  on  a polygamous  relationship.  Still,  in 
the  light  of  later  decisions  of  the  Supreme  Court  it  seems 
as  if  the  district  court  might  have  properly  assumed  juris- 
diction as  to  that  point. 

In  those  cases  in  which  the  right  to  enter  is  found  to 
exist — that  is,  when  the  relationship  claimed  is  proven  to 
the  satisfaction  of  the  executive  officers — the  basis  of  the 
right  to  enter  is  the  communication  of  the  corresponding 
right  in  the  husband  or  father.  As  said  in  the  Gue  Lim14 
case,  the  woman  must  come  in  as  the  wife  of  the  domiciled 
husband  or  not  at  all.  This  being  the  case  the  prima  facie 
evidence  of  the  right  to  remain  presented  by  the  accepted 
fact  of  the  marital  relation  may  be  rebutted  by  such  evi- 
dence as  is  sufficient  in  law  to  rebut  the  prima  facie  evi- 
dence presented  by  the  husband’s  certificate  of  identity; 
a fortiori  by  evidence  tending  to  show  that  the  marital 
relationship  did  not  in  fact  exist,  or  was  merely  colorably 
entered  into  by  either  or  both  parties  for  the  special  pur- 
pose of  evading  the  provisions  of  the  law.15 

In  the  case  of  Chu  Chee  v.  United  States,  the  question 
of  the  communication  of  status  and  evidence  submitted 
in  connection  therewith  was  considered  at  length  both  by 
the  district  court16  and  by  the  Circuit  Court  of  Appeals.17 
In  this  case  the  evidence  of  the  right  to  enter  consisted  in 
insufficient  certificates  of  identity  in  which  the  applicants 
were  described  as  students.  The  certificates  were  insuf- 
ficient because  they  were  issued  only  by  the  United  States 
consul  at  Hongkong  without  the  authorization  of  the 
Chinese  government.  The  law  provides  that  members  of 
the  exempt  class  shall  take  out  the  certificate  in  the  pre- 
scribed form  in  order  to  enter  the  United  States.  The 
applicants  were  students,  and  were  entered  by  the  col- 

i*Gue  Lim  v.  United  States,  176  U.  S.  549,  44  Law  Ed.  544. 

isLooe  Shee  v.  North,  170  Fed.  566. 

i«87  Fed.  312. 

1793  Fed.  797,  and  see  Chapter  on  Status,  ante,  p.  330. 


Evidence. 


593 


lector  as  such.  It  does  not  appear  whether  they  were  ar- 
rested on  the  ground  that  they  were  laborers  not  provided 
with  registration  certificates  or  on  the  ground  that  they 
were  merely  Chinese  persons  unlawfully  in  the  United 
States.  They  introduced  the  certificates  of  identity  to 
show  that  they  were  not  laborers,  and  in  addition  thereto 
other  evidence  which  established  the  undisputed  fact  that 
they  were  at  the  time  of  their  arrest,  and  had  been  ever 
since  their  arrival  in  the  country,  students.18  The  Circuit 
Court  of  Appeals  held  that  being  landed  on  a certificate 
other  than  that  provided  by  law,  they  were  unlawfully  in 
the  United  States  and  subject  to  deportation ; and  that  the 
certificate  constituted  no  evidence  of  their  right  to  land. 
The  district  court  held  that  “while  these  statutes19  in  ex- 
press terms  make  a certificate  the  sole  evidence  of  the  right 
to  land,  and  in  the  case  of  laborers  the  sole  evidence  of  the 
right  to  remain  in  the  United  States,  yet  in  all  other  cases 
of  deportation  it  is  permissible  for  the  person  arrested  to 

establish  by  affirmative  proof his  lawful  right  to 

remain.”  Both  courts  are  in  accord  as  to  the  point  of  un- 
lawful entry.  But  the  Circuit  Court  of  Appeals  further 
states  that  “they  cannot  purge  themselves  of  their  offense 
by  assuming  the  occupation  of  members  of  the  privileged 
classes;”  that  their  right  to  land  being  dependent  on  the 
certificate  they  must  produce  the  same  in  order  to  prove 
the  right  to  remain;  and  that  being  minors,  and  their 
father  being  a laborer,  the  status  of  the  children  was, 
under  the  law,  that  of  the  father.  “The  defendants  be- 
longed to  that  class  upon  their  arrival  in  this  country, 
and  they  so  continued  up  to  the  time  of  their  arrest ; and 
not  having  the  certificate  as  required  under  section  6 of 
the  Act  May  5,  1892, they  were  not  entitled  to  re- 

main in  the  United  States.” 

It  seems  clear  enough  that,  being  admitted  on  certifi- 
cates insufficient  in  law,  the  entry  thus  affected  must  nec- 

1887  Fed.  314. 

19Of  1892  and  93,  as  well  as  the  earlier  acts. 


594  The  Exclusion  and  Expulsion  of  Aliens. 

essarily  be  unlawful,  and  that  the  certificates  could  not 
constitute  even  prima  facie  evidence  of  the  right  to  land. 
But  it  seeems  equally  clear  that  in  proceedings  against 
them  on  the  ground  that  they  were  laborers  who  had  failed 
to  take  out  certificates  of  registration  the  defendants  were 
entitled  to  show  by  means  of  any  evidence  in  their  posses- 
sion that  they  were  not  laborers  when  arrested,  or  during 
the  registration  period,  and  furthermore  that  the  certifi- 
cates, deficient  as  they  were,  might  well  have  gone  far  to 
prove  that  such  was  the  case,  although  necessarily  insuffi- 
cient to  show  that,  even  as  students,  they  were  entitled  to 
remain  in  the  United  States.  The  deficiency  of  the  certifi- 
cate was  no  proof  conclusive  as  to  the  absence  of  the  status 
claimed,  but  merely  proof  of  the  absence  of  the  right  to 
enter.  Regarding  the  evidence  by  which  such  existing 
status  may  be  proven  it  remains  to  be  said  that  this  de- 
pends on  the  nature  of  the  charge  on  which  the  right  to 
deport  is  claimed.  If  it  is  unlawful  presence  in  the  United 
States  it  will  be  sustained  by  the  facts  of  this  case,  to  wit, 
that  the  entry  was  effected  by  means  of  a certificate  in- 
sufficient in  law.  If,  however,  it  is  on  the  ground  that  the 
defendant  is  a laborer  who  has  not  taken  out  his  certificate 
of  registration  under  the  Act  of  1893  proof  that  the  de- 
fendant is  not  a laborer  but  a student  should  be  received 
just  as  proof  is  receivable  in  charges  brought  under  the 
same  section  when  the  defense  is  that  the  defendant  is, 
or  was  at  the  time  of  registration,  a merchant,  or  a citizen 
of  the  United  States;  that  is,  irrespective  of  the  submis- 
sion of  evidence  other  than  Chinese  required  by  a special 
rule  of  evidence,  when  the  fact  to  be  proven  is  prior  resi- 
dence of  a Chinese  laborer  who  has  failed  to  register  as 
provided  by  law. 

3.  Other  Evidence  in  Deportation  Proceedings. 

When  Congress  by  the  Act  of  August  18, 1894,  entrusted 
to  administrative  officers  the  final  determination  as  to  the 
right  of  aliens,  claiming  to  exercise  the  same  by  virtue  of 


Evidence. 


595 


any  law  or  treaty,  to  enter  the  United  States,  the  former 
were,  in  the  vast  majority  of  cases,  made  the  sole  judges 
of  the  existence  of  such  right,  and  as  such  were  given  prac- 
tically exclusive  jurisdiction  to  pass  on  the  questions  of 
fact  on  which  the  right  to  enter  was  based.  While  not 
going  so  far  as  to  say  that  they  may  exclude  evidence 
which  properly  comes  before  them  they  may  disregard  it 
in  the  sense  that  they  may  consider  it  inconclusive  if  not 
altogether  immaterial  to  the  issue,  provided,  perhaps,  that 
such  refusal  to  concede  it  any  evidential  force  whatsoever 
is  not  purely  arbitrary.  Being  the  sole  judges  of  ques- 
tions of  fact,  anything  from  which  the  existence  or  non- 
existence of  the  facts  whereby  the  right  of  entry  is  sought 
to  be  proven  may  be  determined  is  a proper  subject  for 
their  consideration,  and  there  is  no  limitation  on  the 
sources  on  which  they  may  draw  for  the  purpose  of  reach- 
ing a correct  and  fair  conclusion. 

The  province  of  the  United  States  commissioner  in  de- 
portation proceedings  to  determine  the  right  of  Chinese 
aliens  to  remain  in  the  United  States  is  practically  the 
same,  excepting  that  the  proceedings  held  by  him  are  sub- 
ject to  review  by  the  courts.  This  distinction  is  not,  in 
practical  effect,  of  such  great  importance  as  at  first  thought 
it  might  seem  to  be.  Difference  between  the  right  of  ju- 
dicial review  and  the  absence  thereof  may  and  does  mean 
in  many  individual  cases  the  difference  between  remaining 
in  and  being  deported  from  the  United  States ; indeed,  it  is 
possible  that  it  may  in  certain  cases  mean  the  difference 
between  the  banishment  from  his  native  country  of  an 
American  citizen  and  the  continued  exercise  and  enjoy- 
ment of  his  right  as  a dweller  therein  under  the  Constitu- 
tion. But  in  the  great  majority  of  cases,  as  pointed  out 
at  a later  page,19a  the  court  will  not  on  appeal  reverse  the 
commissioner’s  findings  of  fact,  even  if  on  the  same  facts 
the  court  itself  would  have  come  to  a different  conclusion, 

isaSee  post  Chapter  on  Deportation  Procedure. 


596  The  Exclusion  and  Expulsion  of  Aliens. 


unless  the  finding  is  obviously  opposed  to  the  great  weight 
of  the  evidence  offered. 

It  is  true  that  the  courts  may  examine  additional  testi- 
mony if  they  so  desire ; but  it  is  likely  that  such  evidence 
would  be  viewed  with  the  greatest  suspicion,  at  least 
under  conditions  where  it  was  available  at  the  time  of 
the  hearing  before  the  commissioner. 

Deportation  proceedings  being  sui  generis , many  of  the 
rules  of  evidence  applicable  to  civil  or  criminal  trials  have 
little  or  no  application;20  thus  both  the  courts  and  the 
commissioner  may  be  said  to  have,  in  common  with  execu- 
tive officers,  the  right  of  determining  whether  or  not  any 
given  fact,  no  matter  how  apparently  immaterial  in  its 
application  to  the  main  fact  to  be  proven,  has  any  real 
bearing  on  the  issue.  It  follows  that  the  evidential  force 
and  effect  of  acts  or  conditions  connected  with  the  pro- 
gress of  the  case  which  could  not  or  might  not  be  prop- 
erly considered  in  the  course  of  the  trial  of  ordinary 
causes  is  frequently  presented  for  the  determination  of 
either  the  judge  or  the  commissioner. 

Chinese  Evidence. 

Thus  the  probative  value  of  evidence  given  by  Chinese 
persons  merely  because  they  were  Chinese  has  been  passed 
upon  in  the  light  of  an  evidentiary  fact  which  it  was 
proper  to  take  into  consideration  in  determining  the  issue 
of  a given  case ; and  while  it  has  been  held  that,  as  Chinese 
evidence,  it  must  be  scrutinized  with  more  than  common 
caution,  the  mere  fact  that  the  witness  is  a Chinaman 
does  not  mean  that  he  is  necessarily  an  interested  or  biased 
witness.21 

Testimony  Given  by  the  Witness  Against  Himself. 

Deportation  proceedings  not  being  criminal  in  charac- 
ter, not  only  is  evidence  given  by  the  witness  against  him- 

2oBut  see  Moy  Suey  v.  United  States,  149  Fed.  697. 

2iUnited  States  v.  Lee  Huen,  118  Fed.  442. 


Evidence. 


597 


self  admissible,22  but  it  is  competent  for  the  Government 
to  swear  the  defendant  as  a witness  against  himself,23  and 
the  evidential  effect  of  such  statement  will  be  given  full 
consideration  by  the  court.  Although,  strictly  speaking, 
the  rules  of  evidence  have  no  application,  and  any  and  all 
testimony  may  be  received  by  the  judge  or  commissioner, 
he  may  see  fit,  for  the  very  reason  which  renders  certain 
evidence  inadmissible  if  offered  in  regularly  conducted 
civil  or  criminal  cases,  to  reject  it,  or  give  it  no  weight 
whatsoever.  Thus  it  was  held  that  statements  made  by  an 
alien  under  compulsion  imposed  jointly  by  an  inspector 
and  official  interpreter  would  not  be  considered  by  the 
court  in  determining  the  date  of  the  alien’s  arrival  in  the 
United  States.24 

Refusal  to  Testify. 

The  effect  of  standing  mute  and  failing  to  testify  has 
been  differently  construed  by  different  courts.  It  has  been 
held  to  constitute  per  se  a badge  of  illegality,  and  an  ad- 
mission that  the  defendant  has  no  right  to  enter  or  re- 
main in  this  country.25  Other  decisions  hold  that,  while 
it  cannot  be  taken  as  proof  or  admission  of  any  fact,  it 
may  constitute  an  unfavorable  circumstance  against  the 
accused26  and  may  be  taken  into  consideration  in  order- 
ing his  deportation;27  and  still  others  the  fact  that  the 
defendant  refuses  to  take  the  stand  is  not  of  itself  alone 
sufficient  to  justify  an  order  of  deportation,28  particularly 
when  statements,  which,  if  true,  would  show  his  right  to 
remain,  are  uncontradicted  and  unimpeached.29  Again,  a 

22United  States  v.  Hung  Chang,  134  Fed.  19. 

23Low  Foon  Yin  v.  United  States,  145  Fed.  791. 

24 In  re  Lea,  126  Fed.  234. 

25United  States  v.  Chin  Keu,  183  Fed.  332 ; and  see  United  States  v.  Sing 
Tuck,  194  U.  S.  161,  48  Law  Ed.  917. 

26United  States  v.  Lee  Huen,  118  Fed.  442. 

27United  States  v.  Moy  You,  126  Fed.  226. 

28United  States  v.  Leung  Shue,  126  Fed.  423. 

2». Ex  parte  Sing,  82  Fed.  22. 


598  The  Exclusion  and  Expulsion  of  Aliens. 

distinction  has  been  drawn  between  cases  where  there  was 
a mere  failure  to  testify  on  the  part  of  the  defendant  who 
has  not  been  requested  to  do  so,  and  where  no  such  request 
has  been  made ; it  being  held  that  the  former  case  afforded 
no  just  ground  for  the  issuance  of  the  order.30 

ftur'reptitious  Entry . 

Surreptitious  entry  into  the  United  States,  while  per- 
haps not  affording  absolute  proof  of  the  absence  of  the 
right  to  enter  or  remain,  falls  but  little  short  thereof ; and 
at  least  goes  far  to  show  that  the  presence  of  the  defend- 
ant in  the  United  States  is  unlawful,  and  that  sufficient 
grounds  for  his  deportation  exist.81  But  proof  of  frequent 
illegal  attempts  on  the  part  of  other  Chinese  persons  cross- 
ing the  Rio  Grande  should  not  be  allowed  to  be  of  weight 
in  determining  whether  a Chinese  person  held  for  depor- 
tation at  El  Paso  was  born  in  the  United  States  or  effected 
his  entry  in  the  same  way.32 

Racial  Characteristics . 

The  fact  that  an  alien  possesses  all  the  physical  charac- 
teristics of  a Chinese  person  (of  which  the  court  will  take 
judicial  notice)  establishes  at  least  prima  facie  that  he  is 
a Chinaman,  on  the  principle  of  res  ipsa  loquitur , and  the 
Government  is  not  obliged  to  prove  that  nationality  by 
additional  facts;33  but  if  the  appearance  of  the  alien  ar- 
rested in  deportation  proceedings  on  the  charge  of  being 
a Chinese  person  unlawfully  in  the  United  States  is  such 
that  the  court  itself  cannot  be  sure  that  he  is  a Chinaman, 
the  burden  is  on  the  Government  to  prove  the  fact  of 
Chinese  nationality.34 

3oArk  Foo  v.  United  States,  128  Fed.  697. 

3iLee  Joe  Yen  v.  United  States,  148  Fed.  682;  United  States  v.  Lee  Wing, 
136  Fed.  701. 

32Lim  Sam  v.  United  States,  189  Fed.  534. 

33United  States  v.  Hung  Chang,  134  Fed.  19. 

34United  States  v.  Louie  Lee,  184  Fed.  651;  Chee  Cue  Beng  v.  United 
States,  184  Fed.  383. 


Evidence. 


599 


Statements  of  Government  Officers. 

The  affidavit  of  a Chinese  inspector  charging  the  pris- 
oner with  being  a Chinese  person  unlawfully  in  the  United 
States  does  not  constitute  evidence  of  the  fact  by  compe- 
tent testimony;  and,  on  the  other  hand,  when  the  com- 
plaint alleged  the  residence  of  the  defendant  in  the  United 
States  on  May  5,  1892  without  the  certificate  of  residence, 
this  allegation  cannot  be  considered  evidence  of  the  fact 
of  such  residence,  and  the  latter  must  be  proven  by  the 
defendant  as  required  by  the  statute.35  But  the  statement 
of  regularly  appointed  Chinese  inspectors  and  interpreters 
in  deportation  proceedings  as  to  the  Chinese  nationality 
of  the  defendant  constitute  evidence  of  that  fact  and  do 
not  lose  their  evidential  effect  because  it  is  shown  that  the 
the  witnesses  obtained  their  knowledge  of  Chinese  and 
Chinese  characteristics  through  personal  contact  and  in- 
tercourse rather  than  through  book  learning,  and  could 
not  qualify  as  experts  in  ethnology  and  anthropology.36 
Although  the  fact  that  an  alien  presenting  such  physical 
characteristics  arrives  from  China  gives  rise  to  the  pre- 
sumption that  he  was  born  there,37  this  will  be  rebutted  by 
direct,  circumstantial  and  uncontradicted  evidence  of  his 
birth  in  the  United  States  38 

Presumptions  Based  on  Absence  of  Certificate. 

The  want  of  possession  of  the  certificate  of  registration 
on  the  part  of  a Chinese  laborer,  as  has  already  been 
stated,  was  made  by  law  to  constitute  prima  facie  proof 
of  his  illegal  presence  in  the  United  States.  There  seems 
to  be  little  doubt  that  no  such  presumption  exists  in  the 
case  of  a domiciled  merchant  who  fails  to  have  in  his  pos- 
session the  “section  6 certificate,”  which  alone  authorized 

ssUnited  States  v.  Williams,  83  Fed.  997. 

36United  States  v.  Hung  Chang,  supra. 

37 Ex  parte  Lung  Wing  Wun,  161  Fed.  211. 

33United  States  v.  Jue  Wy,  103  Fed.  795. 


600  The  Exclusion  and  Expulsion  of  Aliens. 


his  entry;  since  such  certificates  have  never  been  consid- 
ered to  constitute  more  than  evidence  of  the  right  to  enter 
as  opposed  to  proof  of  the  right  to  remain.  It  has  been 
held  that  a Chinese  person  is  not  subject  to  deportation 
when  it  is  proved  that  he  is  and  has  been  for  seven  years 
a member  of  a firm  of  merchants  in  the  United  States, 
although  he  has  failed  to  produce  any  proof  whatsoever  as 
to  the  manner  of  his  re-entry;39  and  it  has  been  definitely 
held  that  the  failure  by  the  minor  child  of  a Chinese  mer- 
chant to  have  such  a certificate  in  his  possession  can  give 
rise  to  no  presumption  of  illegal  residence.40  Indeed,  when 
the  lawful  entry  of  such  minor  son  has  been  shown  such 
entry  gives  rise  to  a presumption  of  continued  lawful  resi- 
dence here.41  The  obvious  reason  for  this  conclusion  ap- 
pears to  be  that,  as  neither  the  exclusion  laws  nor  the 
treaties  with  China  contain  any  such  requirement  the 
presence  or  absence  of  the  certificate  from  or  in  the  pos- 
session of  a Chinese  person  of  the  exempted  classes  act- 
ually in  the  United  States  can  have  no  significance  one  way 
or  the  other. 

Presumption  raised  by  length  of  residence. 

Mere  length  of  residence  in  the  United  States  by  a 
Chinese  person  is  no  indication  that  his  presence  in  this 
country  is  lawful.  Thus  it  is  not  to  be  presumed  that  be- 
cause a Chinese  person  arrested  in  1903  has  lived  without 
molestation  in  the  United  States  for  nineteen  years  he  ar- 
rived in  this  country  before  the  Act  of  1882  went  into 
effect.42  Nor  does  the  fact  that  a Chinese  person  has  been 
allowed  to  land  by  the  Collector  of  Customs  constitute 
even  prima  facie  proof  of  the  alien’s  right  to  remain  ;43  and 
when  the  evidence  shows  that  an  alien  is  a Chinese  person 

39United  States  v.  Wong  Lung,  103  Fed.  794. 

4oUnited  States  v.  Chin  Sing,  153  Fed.  590;  and  see  United  States  v.  Yee 
Oung  Yuen,  191  Fed.  28. 

4iUnited  States  v.  Yee  Oung  Yuen,  supra. 

42United  States  v.  Ah  Chong,  130  Fed.  885. 

43United  States  v.  Lau  Sun  Ho,  85  Fed.  422. 


Evidence. 


601 


and  not  of  the  exempt  class  the  presumption  arises  that 
he  was  not  born  in  the  United  States.44 

Evidential  effect  of  official  acts  or  documents. 

The  Courts  have  at  times  had  occasion  to  determine 
what  evidential  effect  shall  be  ascribed  to  acts  of  an  execu- 
tive or  judicial  nature  such  as  the  issuance  of  documents 
purporting  to  establish  the  right  of  entry  or  return  of 
Chinese  persons,  or  judgments  or  decisions  rendered  with 
regard  to  such  right.  Thus  the  courts  have  gone  so  far  as 
to  hold  that  a passport  issued  by  the  Secretary  of  State 
constitutes  no  evidence  of  United  States  citizenship,45 
while  other  courts,  taking  a less  extreme  view,  state  that 
a passport  is  not  conclusive  evidence  of  its  contents,  and 
its  possession  by  a Chinese  alien  should  be  satisfactorily 
accounted  for  ;46  but  it  has  been  held  that  the  legal  effect  of 
passports,  certificates,  and  other  papers  in  the  possession 
of  a Chinese  person  seeking  admission  into  the  United 
States  is  not  rendered  void  by  a statement  made  under 
oath  by  a Chinese  inspector  that  the  interpreter  told  him 
that  the  applicant  had  made  certain  statements  to  him  as 
to  his  occupation  and  intention  at  variance  with  the  con- 
tents of  the  passport.47  The  fact,  however,  that  an  alien 
possesses  a passport  issued  by  a foreign  government  does 
not  affect  this  Government’s  right  to  deport;48  nor  is  that 
light  affected  by  the  fact  that  the  defendant  holds  a “cer- 
tificate of  identity”  granted  him  by  administration  officers 
in  accordance  with  Rule  19  of  the  Chinese  Regulations  of 
1910  issued  by  the  Department  of  Commerce  and  Labor,49 
though  the  possession  by  a Chinese  person,  who  has  ac- 
quired a domicile  in  Canada,  of  a certificate  of  leave  en- 

**Ex  parte  Loung  June,  160  Fed.  251. 

45Edsell  v.  Mark,  179  Fed.  292 ; In  re  Gee  Hop,  71  Fed.  274. 

^United  States  v.  Sing  Lee,  125  Fed.  627. 

4 7In  re  Lum  Lin  Ying,  59  Fed.  682. 

^United  States  ex  rel.  Calamia  v.  Redfern,  180  Fed.  506. 

49Lew  Quen  Wo  v.  United  States,  184  Fed.  685;  see  Chinese  Regulations, 
Appendix. 


602  The  Exclusion  and  Expulsion  of  Aliens. 


titling  him  to  return  to  Canada,  issued  by  the  Canadian 
officials  at  Vancouver,  is  sufficient  to  show  prima  facie 
that  he  has  not  lost  his  domicile.60  The  contents  of  a ship’s 
list  of  Chinese  passengers  has  been  held  inadmissible,  un- 
less the  list  is  shown  to  be  authoritative,  and  a certified 
copy  thereof  is  produced,61  nor  is  a birth  certificate,  not 
prepared  as  required  by  law,  legal  evidence  in  deportation 
proceedings;62  nor  does  a consular  certificate  issued  at 
Hongkong,  and  not  indorsed  by  the  Chinese  Government 
in  accordance  with  the  provisions  of  section  6 of  the  Act 
of  1882  constitute  evidence  of  the  right  of  the  holder  to 
enter  the  United  States.63  And  when  the  certificate  shows 
that  it  has  been  issued  by  the  Chinese  Consul  General  at 
Yokohama,  this  fact  alone  is  insufficient  to  show  that  it 
has  been  issued  by  the  authority  of  the  Chinese  Govern- 
ment.64 The  certificate  issued  by  a United  States  commis- 
sioner to  the  effect  that  a Chinese  person  is  a citizen  of  the 
United  States  and  thus  entitled  to  remain  is  not  legal  evi- 
dence of  the  facts  on  which  the  commissioner’s  decision 
was  based;66  and  where  in  proceedings  against  a Chinese 
alien  he  presents  the  judgment  of  a former  United  States 
commissioner  dismissing  former  proceedings  against  him 
on  the  ground  that  he  was  an  American  citizen,  this  is  not 
conclusive  evidence  of  the  fact  that  the  defendant  is  the 

5oUnited  States  v.  Chong  Sam,  47  Fed.  878. 

5iUnited  States  v.  Long  Hop,  55  Fed.  58. 

62Lee  Yuen  Sue  v.  United  States,  146  Fed.  670.  It  has  been  held  that 
the  facts  on  which  a Chinese  person  seeking  to  prove  his  birth  in  the 
Hawaiian  Islands  depends  are  presumably  within  his  own  control,  and  where 
at  the  time  of  the  alleged  birth  in  the  Hawaiian  Islands  the  law  made  it  a 
penal  offence  for  any  parent  not  to  report  for  registration  the  birth  of  the 
child,  and  no  proof  of  compliance  with  this  law  was  introduced  on  behalf 
of  the  petitioner,  this  fact  militates  strongly  against  the  petitioner’s  con- 
tention, inasmuch  as  it  was  presumed  that  all  births  of  children  were  reg- 
istered in  accordance  with  this  law.  In  re  Leong  Sai,  Yol.  1,  U.  S.  District 
Ct.  Hawaii,  234. 

63United  States  v.  Chu  Chee,  93  Fed.  797. 

e^United  States  v.  Mock  Chew,  54  Fed.  490. 

zsEx  parte  Lung  Wing  Wun,  161  Fed.  211. 


Evidence. 


603 

‘ ! ) • ] 

, 

person  described  in  the  judgment.56  The  written  state- 
ment by  a United  States  commissioner  that  a Chinese  per- 
son has  been  adjudged  to  have  the  right  to  remain  in  the 
United  States  does  not  constitute  either  evidence  of  such 
adjudication  or  a judgment  conclusive  of  such  fact;57  and 
on  the  other  hand  the  affidavit  of  a United  States  Chinese 
inspector  charging  the  prisoner  with  being  a Chinese  la- 
borer does  not  constitute  evidence  to  that  effect,58  nor  does 
an  unverified  telegraphic  despatch  alleged  to  have  been 
sent  by  the  Bureau  of  Immigration  at  Washington,  D.  C., 
showing  that  an  appeal  in  an  immigration  case  has  been 
dismissed  constitute  legal  evidence  that  the  appeal  has  in 
fact  been  dsposed  of.59 

4.  Sufficiency  of  Evidence  in  Determining  Status. 

The  preceding  sections  dealing  with  the  evidence  which 
may  be  presented  for  the  purpose  of  establishing  that  the 
defendant  in  a particular  case  belongs  to  one  of  the 
classes  declared  exempt  from  its  operation  by  the  Chinese- 
exclusion  acts,  or  is  exempt  altogether  from  the  operation 
thereof  by  virtue  of  birth  in  the  United  States,  have  dealt 
with  the  subject  of  the  evidence  offered  from  the  point  of 
view  of  what  proof  is  by  statute  available,  or  of  how  the 
fact  at  issue  may  be  shown,  rather  than  from  that  of  the 
sufficiency  of  the  evidence  presented.  It  is  now  proposed 
to  show  whether  or  not,  on  a given  state  of  facts,  the  status 
sought  to  be  established  is  shown  to  exist.  This  involves 
at  the  outset  an  examination  of  the  meaning  of  the  terms 
“laborer”  and  “merchant”  as  used  in  the  Chinese  exclusion 
acts.  Where  the  statute  itself  provides  a definition  its  terms 
must  be  strictly  followed,  except  of  course  where  a literal 
interpretation  of  the  same  would  give  results  which  Con- 

s$Ex  parte  Long  Lock,  173  Fed.  208. 

57  Ah  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619 ; Ex  parte 
Lung  Foot,  174  Fed.  70. 

68United  States  v.  Louie  Lee,  184  Fed.  651. 

59 in  re  Di  Simone,  108  Fed.  942 ; reversed  on  confession  of  error. 


604  The  Exclusion  and  Expulsion  of  Aliens. 

gress  plainly  could  not  have  contemplated,  or  which  would 
obviously  defeat  the  purposes  of  the  act;  and  where  no 
statutory  definition  appears  the  terms  must,  as  a general 
rule,  be  deemed  to  have  been  used  in  their  ordinary  sense. 

(A.)  Laborer  Status. 

The  term  “laborer”  was  never  defined  in  the  Chinese 
exclusion  acts  until  the  passage  of  the  law  of  November 
3,  1893.  The  general  distinction  constantly  maintained 
has  been  that  which  exists  between  “laborers”  and  “per- 
sons other  than  laborers.”  Those  belonging  to  this  second 
general  class  are  designated  by  Article  II  of  the  Treaty 
of  1880  as  “teachers,  students,  merchants,  or  Chinese  sub- 
jects proceeding  to  the  United  States  from  curiosity,”  and 
later  by  Article  III  of  the  Treaty  of  1894  as  “Chinese  sub- 
jects being  officials,  teachers,  students,  or  travellers  for 
curiosity  or  pleasure,  but  not  laborers.”  It  is  true  that 
Section  15  of  the  Act  of  1882,  as  amended,  states  that  “the 
words  Chinese  laborers  wherever  used  in  this  act  shall  be 
construed  to  mean  both  skilled  and  unskilled  laborers  and 
Chinese  employed  in  mining ;”  but  merely  to  provide  that 
the  word  “laborers”  should  include  special  classes  of 
laborers  did  not  constitute  a definition  of  the  general  term. 
Section  2 of  the  Act  of  1893  provides  “That  the  words 
‘laborer’  or  ‘laborers,’  wherever  used  in  this  act,  or  in  the 
act  to  which  this  is  an  amendment,  shall  be  construed  to 
mean  both  skilled  and  unskilled  manual  laborers,  includ- 
ing Chinese  employed  in  mining,  fishing,  huckstering, 
peddling,  laundry-men,  or  those  engaged  in  taking,  drying 
or  otherwise  preserving  shell  or  other  fish  for  home  con- 
sumption or  exportation.”  This  definition,  it  will  be 
noted,  while  more  detailed  and  particular  than  that  in  the 
Act  of  1882,  is  not  exclusive  in  its  terms.  Moreover,  it 
does  not  limit  the  meaning  of  the  word  “laborer”  so  as  to 


Evidence. 


605 


except  therefrom  any  persons  who  were  laborers  within  the 
intent  of  those  words  as  used  in  the  treaty  of  1880.60 

While  the  common  and  generally  accepted  meaning  of 
the  term  “laborer”  in  this  country  may  be  said  to  involve 
the  conception  of  the  performance  of  manual  labor  to  the 
exclusion  of  other  pursuits,  the  term  as  used  in  the  Chi- 
nese exclusion  acts  is  given  a far  broader  meaning  by  the 
courts.  Shortly  before  the  Act  of  1893  went  into  effect,  a 
United  States  District  Court  held  that  the  words  “Chinese 
laborers,”  as  used  in  the  then  existing  law  on  the  subject, 
had  the  same  meaning  as  in  the  treaty  with  China;  that, 
therefore,  as  far  as  regards  exclusion,  they  included  all 
Chinese  persons  not  specifically  enumerated  as  exempt;61 
and  that  it  followed  that  highbinders  and  gamblers  were 
laborers  and  subject  to  deportation  under  the  Act  of  May 
5, 1892.  After  the  passage  of  the  Act  of  1893,  it  seems  that 
an  employment  or  business  other  than  business  partici- 
pated in  by  legitimate  “merchants”  which  only  incidentally 
involved  the  exercise  of  manual  labor  for  its  conduct  placed 
the  participator  or  owner  thereof  in  the  category  of  man- 
ual laborers.  Thus  where  the  evidence  showed  that  the 
proprietor  of  a restaurant  provided,  prepared  and  cooked 
meat  for  his  patrons,  it  was  held  sufficient  to  prove  that  he 
was  a laborer  ;62  and  the  same  result  was  reached  where  it 
was  proven  that  a Chinese  person  acted  at  times  as  a 
cook,  although  his  main  occupation  was  that  of  mer- 
chant;63 and  where  a Chinese  person  was  shown  to  be  a 
clerk  employed  in  a store  this  was  held  sufficient  to  prove 
that  he  was  a laborer  within  the  prohibition  of  the  act.64 
It  was  in  vain  that  evidence  was  offered  showing  that  Chi- 
nese persons  had  interests  in  mercantile  concerns  or  were 
in  fact  regular  members  of  such  mercantile  establish- 

60Lee  Ah  Yin  v.  United  States,  116  Fed.  614. 

eiUnited  States  v.  Ah  Fawn,  57  Fed.  591. 

62 In  re  Ah  Yow,  59  Fed.  561. 

63Lew  Jim  v.  United  States,  66  Fed.  953. 

64Mar  Sing  v.  United  States,  137  Fed.  875. 


606  The  Exclusion  and  Expulsion  of  Aliens. 


ments.  If  the  evidence  showed  that  they  spent  part  of 
their  time  regularly  in  manual  labor,  even  if  done  in  con- 
nection with  the  business  of  the  firm,  the  status  of  laborer 
was  held  thereby  to  be  conclusively  proven,  unless  it  were 
also  shown  that  the  manual  labor  performed  “was  neces- 
sary to  the  conduct  of  such  business.”66  Even  Chinese  per- 
sons shown  to  be  engaged  in  the  business  of  keeping  a res- 
taurant or  lodging  house  have  been  held  to  be  laborers;66 
although  it  has  been  stated  that  the  mere  fact  of  being  a 
restaurant  keeper  does  not  necessarily  make  the  owner  a 
laborer  ;67  and  where  a Chinaman  was  a resident  merchant 
prior  to  the  passage  of  the  exclusion  acts  and  in  possession 
of  a merchant’s  certificate  providing  for  his  re-entry  after 
a temporary  absence  from  the  United  States,  it  was  held 
that  he  could  not  be  regarded  as  unlawfully  in  this  coun- 
try because  he  had  become  a restaurant-keeper  and  had  no 
laborer’s  certificate.68  The  fact  that  a Chinese  person  was 
an  active  teacher  in  a Sunday  School,  when  shown  in 
connection  with  the  further  fact  that  he  was  a laundry- 
man,  was  held  insufficient  to  take  him  out  of  the  status  of 
a laborer  ;69  a decision  which  would  seem  to  be  fully  justi- 
fied by  the  bare  words  of  section  2 of  the  Act  of  1893, 
which  specify  that  laundrymen  are  laborers. 

The  conception  more  or  less  common  in  the  United 
States  that  one  engaged  in  manual  labor  is  employed  for 
hire  in  the  service  of  another — and  this  seems  to  have 
been  the  judicial  conception  thereof  in  some  of  the  earlier 
cases70 — has  no  application  to  the  Chinese  exclusion  acts. 
Thus,  where  the  proof  showed  that  a Chinese  person 
owned  an  interest  of  five  hundred  dollars  in  a mercantile 
establishment,  but  operated  a fruit  farm  independently  as 

65Mar  Bing  Guey,  97  Fed.  576;  Lai  Moy  v.  United  States,  66  Fed.  955. 

66United  States  v.  Chung  Fi  Koon,  83  Fed.  143;  In  re  Ah  Yow,  59  Fed. 
961. 

6720  Op.  Atty.-Gen.,  602,  May  26,  1893. 

6889  P.  525. 

69/71  re  Leung,  86  Fed.  303. 

70/7J,  re  Ho  King,  14  Fed.  724. 


Evidence. 


607 


a tenant  thereof  and  sold  the  fruit  grown  there  by  his  own 
labor,  it  was  held  sufficient  to  prove  him  a laborer  under 
the  exclusion  acts  ;71  and  this  decision  follows,  in  so  far  as 
it  decides  that  work  done  on  a fruit  farm  by  the  lessee 
thereof  is  sufficient  to  classify  him  as  a laborer,  an  earlier 
decision  holding  that  the  performance  of  certain  manual 
labor  by  the  lessee  in  assisting  his  employees — to  what  ex- 
tent it  did  not  appear — in  gathering  and  caring  for  the 
fruit,  was  sufficient  to  establish  his  laborer’s  status. 

As  a Chinese  woman  takes,  as  has  already  been  shown, 
the  status  of  her  husband,  one  marrying  a Chinese  laborer 
acquires  thereby  the  same  rights  only  to  enter  or  remain 
in  the  United  States  as  her  husband  holds;72  and  it  ap- 
pears that  acts  of  prostitution  by  a Chinese  woman  con- 
stitute proof  at  least  of  her  want  of  exempt  status,  and 
she  is  therefore  to  be  held  in  the  same  category  as  a la- 
borer.73 Similarly  want  of  exempt  status  is  proven  by  the 
fact  that  a Chinese  slave  girl  was  brought  into  this  coun- 
try for  purposes  of  prostitution  by  her  master,  from  whom 
she  later  escaped  ;74  and  this  in  spite  of  the  fact  of  her  mar- 
riage, subsequent  to  the  escape,  to  a person  registered  in 
the  United  States  as  a Chinese  laborer.  There  was,  how- 
ever, considerable  doubt  as  to  the  bona  tides  of  the  mar- 
riage. 

Proof  of  the  fact  that  a Chinese  merchant  was  impris- 
oned for  a felony  has  been  held  sufficient  to  show  that  du- 
ring the  time  of  his  imprisonment  he  was  a laborer,  and 
consequently  under  the  obligation  of  registering  as  such 

TiLew  Quen  Wo  v.  United  States,  184  Fed.  685;  and  likewise  when  a 
Chinese  person  is  acting  as  manager  of  a rice  plantation  on  which  he 
worked,  belonging  to  an  unincorporated  company  in  which  he  claims  an 
interest,  but  which  company  had  no  articles  of  incorporation  or  co-partner- 
ship in  which  his  name  appears,  he  is  an  employee  of  the  company  and 
therefore  not  a merchant,  but  a laborer.  U.  S.  v.  Cut  Yong,  Yol.  1,  U.  S. 
D.  Ct.  Hawaii,  104. 

72Case  of  the  Chinese  Wife  (Ah  Moy)  21  Fed.  785. 

73Lee  Ah  Yin  v.  United  States,  116  Fed.  614. 

7*United  States  v.  Ah  Sou,  138  Fed.  775. 


608  The  Exclusion  and  Expulsion  of  Aliens. 


under  the  Act  of  1893 — an  act  the  performance  of  which 
was  manifestly  impossible  as  his  term  of  imprisonment  ex- 
tended throughout  the  registration  period.  It  must  be 
conceded  that  it  is  somewhat  difficult  to  conceive  how  du- 
ring that  time  he  could  justly  be  held  to  be  unlawfully  in 
the  United  States,  if,  as  a merchant,  he  was,  up  to  the 
time  of  his  imprisonment,  lawfully  in  the  country.  It 
would  seem  that  no  matter  how  desirable  the  elimination 
from  the  community  of  so  undesirable  a resident  may  have 
been,  the  fact  that  he  was  imprisoned  could  not  in  truth 
alter  the  fact  of  his  being  a merchant  any  more  than  it 
could  affect  his  nationality;  that  by  no  subtlety  of  legal 
alchemy  could  imprisonment  at  hard  labor  evolve  a la- 
borer from  a merchant,  and  that  for  this  reason  alone  his 
case  would  not  seem  to  fall  within  the  intent  of  the  Act 
of  1893.  The  Court  seems  to  have  fallen  into  the  same 
error  as  did  the  Circuit  Court  of  Appeals  in  the  Chu  Chee 
case,75  i.  e.,  of  overlooking  the  fact  that  status,  meaning 
thereby  what  a man  really  is,  is  a pure  question  of  fact; 
and  that  the  mere  circumstance  that  for  some  reason  the 
person  occupying  the  position  cannot  exercise  it  or  is  de- 
prived of  certain  rights  enjoyed  by  others  similarly  cir- 
cumstanced, cannot  operate  to  destroy  a status  which  the 
incumbent  has  not  surrendered  or  which  has  not  ceased  to 
exist  by  virtue  of  some  positive  provision  of  law. 

When  the  record  of  the  United  States  commissioner  be- 
fore whom  certain  Chinese  persons  were  tried  originally 
stated  that  “the  proofs  furnished  in  this  case  are  suffi- 
cient to  show  that  these  three  persons  were  engaged  in 
business  rather  than  in  manual  labor  in  1894,”  although 
later  found  engaged  as  laborers  without  certificates  of 
residence,  they  were  held  not  to  be  laborers.76  A distinc- 
tion has  been  made  between  Chinese  persons  who  were 
laundrymen  whose  regular  business  consisted  in  the 
manual  labor  necessary  to  conduct  a laundry,  and  the  pro- 

75United  States  v.  Chu  Chee,  93  Fed.  797. 

76Tom  Hong  v.  United  States,  193  U.  S.  517,  48  Law  Ed.  772. 


Evidence. 


609 


prietors  thereof.  Thus  where  the  facts  showed  that  the 
defendant  was  the  owner  and  operator  of  various  Chinese 
laundries,  and  may  incidentally  have  ironed  a shirt  or 
cooked  his  own  dinner,  he  was  held  not  to  be  a laborer 
under  the  act.77  And  the  fact  that  the  manual  labor  shown 
to  have  been  done  by  the  defendant  was  merely  house  work 
for  a firm  of  thirteen  partners  was  held  sufficient  to  class 
him  as  a domestic.78  It  is  to  be  noted  in  this  connection 
that  while  members  of  the  exempt  classes  “together  with 
their  body  servants’’  are  to  be  allowed  to  go  and  come  of 
their  own  accord  by  Article  II  of  the  Treaty  of  1880,  Ar- 
ticle III  of  the  Treaty  of  1894  contains  no  provisions  as 
to  domestics  or  servants.  It  may  be  further  noted  that  the 
defendant  in  the  case  was  a Chinese  person  who,  up  to 
some  months  before  the  passage  of  the  Act  of  1893,  was  a 
peddler,  but  who,  at  the  time  indicated,  became  a member 
of  the  firm  in  question,  and  was  on  that  additional  ground 
held  not  to  be  a laborer  within  the  meaning  of  the  act. 

Proof  of  facts  which  show  that  Chinese  persons  are  en- 
gaged in  a calling  or  profession  participation  in  which  is 
not  specifically  designated  in  the  treaties  as  exempting 
them  from  exclusion  has  been  held  sufficient  to  show  that 
they  were  not  subject  to  exclusion  as  laborers.  Thus 
where  it  is  shown  that  Chinese  persons  present  in  or  seek- 
ing admission  to  the  United  States  are  actors,79  waiters  on 
board  ship,80  or  members  of  a ship’s  crew,81  it  has  been  held 
that  such  persons  are  not  laborers;  but  it  is  at  the  same 
time  held  that  Chinese  seamen  have  no  right  to  enter  the 
United  States  under  the  exclusion  acts  except  on  giving 
bond  as  required  by  the  Rules  of  the  Department  of  Com- 

77TJnited  States  v.  Kol  Lee,  132  Fed.  136. 

78United  States  v.  Sun,  76  Fed.  450. 

79 In  re  Ho  King,  14  Fed.  724;  contra  In  re  Fook  65  Howard  Practice, 
404. 

80In  re  Ah  Sing,  13  Fed.  286. 

8iUnited  States  v.  Jamieson,  185  Fed.  165;  In  re  Moncan,  14  Fed.  44. 


610  The  Exclusion  and  Expulsion  of  Aliens. 

merce  and  Labor.82  Except  for  the  fact  that  it  has  been 
made  the  subject  of  judicial  determination,83  it  would  seem 
unnecessary  to  add  that  the  wife  and  minor  chifdren  of 
Chinese  merchants  domiciled  in  the  United  States  are  not 
laborers  within  the  meaning  of  the  exclusion  acts.  It  was 
held  in  an  early  decision84  that  a Chinese  laborer,  to  be 
excludable  under  the  Act  of  1882,  must  be  a subject  of  the 
emperor  of  China;  but  in  interpreting  the  meaning  of  the 
term  laborer  as  used  in  the  Act  of  September  13,  1888,  it 
was  held  that  where  the  evidence  shows  that  a Chinese 
person  has  emigrated  from  Hongkong,  or  is  even  a native 
of  that  colony,  he  is  excludable  under  that  act.85 

(B.)  Mercantile  Status. 

The  Act  of  1893  was  the  first  of  the  Chinese-exclusion 
acts  to  provide  a definition  for  the  term  “merchant;”  but 
the  act  of  1882  had  already  designated  the  facts  which,  if 
contained  in  the  certificate  of  identity  required  by  section 
6 thereof,  were  to  constitute  prima  facie  proof  of  the 
mercantile  status  of  the  holder.  In  addition  to  the  facts 
to  be  shown  by  the  certificate  of  every  Chinese  person 
other  than  a laborer,  said  act  provided  that  the  merchant’s 
certificate  “shall,  in  addition  to  above  requirements,  state 
the  nature,  character  and  estimated  value  of  the  business 
carried  on  by  him  prior  to  and  at  the  time  of  his  applica- 
tion aforesaid : Provided  that  nothing  in  this  act  nor  in 
said  treaty  ( 1880 ) shall  be  construed  as  embracing  within 
the  meaning  of  the  word  “merchant”  hucksters,  peddlers, 
or  those  engaged  in  taking  drying  or  otherwise  preserving 
shell  or  other  fish  for  home  consumption  or  exportation.” 
As  already  stated,  the  contents  of  the  certificate  were  sub- 
ject to  rebuttal  by  the  authorities  and,  if  the  certificate  did 

82United  States  v.  Crouch,  185  Fed.  907;  United  States  v.  Jamieson,  185 
Fed.  165;  United  States  v.  Ah  Foot,  183  Fed.  33;  In  re  Jam,  101  Fed.  989. 
83 In  re  Lee  Yee  Sing,  85  Fed.  635. 
s^United  States  v.  Douglas,  17  Fed.  634. 
ssUnited  States  v.  Foong  King,  132  Fed.  107. 


Evidence. 


611 


not  conform  to  the  requirements,  the  holder  was  subject  to 
exclusion  on  arrival,  or  if  within  the  country,  and  basing 
his  right  to  remain  on  the  defective  certificate,  to  deporta- 
tion.86 

Section  2 of  the  Act  of  1893  defines  to  the  exclusion  of 
any  other  meaning  the  term  “merchant”  as  used  therein: 
“A  merchant  is  a person  engaged  in  buying  and  selling 
merchandise  at  a fixed  place  of  business,  which  business  is 
conducted  in  his  name,  and  who,  during  the  time  he  claims 
to  be  engaged  as  a merchant,  does  not  engage  in  the  per- 
formance of  any  manual  labor,  except  such  as  is  necessary 
in  the  conduct  of  his  business  as  such  merchant.” 

The  section  further  provides  that  “Where  an  applica- 
tion is  made  by  a Chinaman  for  entrance  into  the  United 
States  on  the  ground  that  he  was  formerly  engaged  in  this 
country  as  a merchant  he  shall  establish  by  the  testimony 
of  two  credible  witnesses  other  than  Chinese  the  fact  that 
he  conducted  such  business  as  hereinbefore  defined  for  at 
least  one  year  before  his  departure  from  the  United  States, 
and  that  during  such  year  he  was  not  engaged  in  the  per- 
formance of  any  manual  labor  except  such  as  was  neces- 
sary in  the  conduct  of  his  business  as  such  merchant,  and 
in  default  of  such  proof  shall  be  refused  landing.” 

Buying  and  Selling  Merchandise  at  a Fixed  Place  of  Busi- 
ness. 

In  order  to  prove  a mercantile  status  a Chinese  person 
arrested  for  deportation  who  claims  to  be  a merchant 
must  affirmatively  show  a fixed  place  of  business,  and  such 
frequent  sales  of  merchandise  as  entitle  him  to  be  con- 
sidered a merchant  within  the  ordinary  meaning  of  the 
term,  or  an  actual  or  substantial  interest  in  some  firm 
of  such  merchants.87  Thus,  when  it  appears  that  the  de- 
fendant was  conducting  the  business  of  a merchant’s  clerk 
in  his  own  name  as  a merchant’s  clerk,  and  was  a mer- 
chant’s clerk;  succeeded  to  the  interest  of  his  father,  a 

seCheung  Pang  v.  United  States,  133  Fed.  392. 

STUnited  States  v.  Lung  Hong,  105  Fed.  188. 


612  The  Exclusion  and  Expulsion  of  Aliens. 

Chinese  merchant  in  a Chinese  mercantile  concern,  and 
was  sent  out  by  said  firm  to  take  charge  of  another  busi- 
ness establishment,  and  owned  a half  interest  in  the  firm, 
his  mercantile  status  was  held  established.88 

“Which  Business  is  Conducted  in  His  Own  Name” 

Where  the  evidence  shows  that  a Chinese  person  was  a 
merchant  and  a member  of  a mercantile  firm  up  to  the 
time  when  the  stock  was  destroyed  by  fire,  and  that  imme- 
diately thereafter  he  and  his  partner  resumed  and  built  up 
a business  anew,  the  fact  that  his  name  does  not  appear  in 
the  firm  name  or  in  the  partnership  accounts  is  insuffi- 
cient to  prove  the  absence  of  mercantile  status.89  It  is 
enough  if  the  evidence  shows  that  business  is  carried  on  in 
the  firm  name,  where  this  includes  the  name  of  the  de- 
fendant.90 The  soundness  of  this  view  was  questioned 
by  the  Circuit  Court  of  Appeals  in  the  case  of  Pin 
Kwan;91  but  the  Supreme  Court  held  in  the  case  of  Tom 
Hong  v.  United  States92  that  the  names  of  the  partners 
need  not  appear  in  the  firm  style  under  which  a Chinese 
grocery  is  conducted  in  order  to  constitute  the  partners 
merchants  under  the  Act  of  1893 ; and  that  when  the  fact 
of  a mercantile  partnership  is  proved  by  other  facts,  the 
partnership  books  are  not  essential  to  establish  the  fact 
of  partnership.93 

“Does  not  Engage  in  the  Performance  of  Any  Manual 
Labor  Except  Such  as  is  Necessary  to  the  Conduct  of 
His  Business  as  Such  Merchant.” 

Where  the  evidence  showed  that  a Chinese  person  had 
owned  interests  in  two  mercantile  firms  and  at  the  time 
of  deportation  proceedings  still  had  an  interest  in  one, 

88 in  re  Chu  Po j,  81  Fed.  826. 

89Wong  Fong  v.  United  States,  77  Fed.  168,  reversing  71  Fed.  283;  Lee 
Kam  v.  United  States,  62  Fed.  914. 

aoUnited  States  v.  Wong  Ah  Gah,  94  Ted.  831. 

aiUnited  States  v.  Pin  Kwan,  100  Fed.  609. 

92193  U.  S.  517,  48  Law  Ed.  772. 

93And  see  United  States  v.  Tan  Sam  Tao,  15  Phil.  Rep.  592. 


Evidence. 


613 


but  was  not  actively  engaged  in  business,  and  bad  a third 
interest  in  a restaurant  of  which  he  was  head  cook,  and 
had  provided  himself  with  a laborer’s  certificate,  these 
facts  were  held  insufficient  to  establish  a mercantile 
status  ;94  and  a Chinese  person  who  spends  half  his  time  in 
cutting  and  sewing  garments  for  sale  by  the  firm  of  which 
he  is  a member  is  not  a merchant  within  the  meaning  of 
the  act;95  nor  is  evidence  showing  that  defendant  worked 
as  a servant  in  a boarding  house  and  nailed  up  and  deliv- 
ered boxes  in  a grocery  store  where  he  had  no  financial 
interest  consistent  with  a claim  of  mercantile  status.96 

It  being  under  the  act  incumbent  on  Chinese  persons 
who,  on  returning  to  the  United  States,  allege  that  they 
are  merchants,  to  furnish  proof  of  the  fact  of  the  exist- 
ence of  the  mercantile  status  for  a period  covering  at 
least  one  year  before  departure,  this  can  be  done  only 
by  proving  that  during  that  time  the  applicant  for  ad- 
mission was  in  fact  a “merchant”  as  that  term  is  defined 
in  the  Act  of  1893.97  Therefore,  evidence  which  shows  that 
during  periods  of  varying  length  in  the  year  prior  to  his 
departure  for  China,  the  applicant  worked  as  a house 
servant  for  an  old  employer  and  engaged  thereby  in 
manual  labor  unconnected  with  his  business  as  a mer- 
chant, is  not  sufficient  to  prove  the  status  on  which  the 
claimed  right  of  re-entry  is  based;98  but  wThere  a Chinese 
merchant  during  the  year  antedating  his  visit  to  China 
was  shown  to  have  done  no  manual  labor,  except  that  for  a 
short  time  he  assisted  in  pickling  shrimp  and  delivering 
them  to  customers,  in  connection  with  the  business  of  a 
mercantile  firm  of  which  he  was  a member,  these  acts  were 
held  not  to  constitute  manual  labor  within  the  meaning 
of  the  statute.99 

9<Mar  Bing  Guey  v.  United  States,  97  Fed.  576. 

ssLai  Moy  v.  United  States,  66  Fed.  955. 

seMar  Sing  v.  United  States,  137  Fed.  875. 

Min  re  Lung  (also  In  re  Yue  Soon),  61  Fed.  641. 

98Lew  Jim  v.  United  States,  66  Fed.  953. 

99 Ow  Yang  Dean  v.  United  States,  145  Fed.  801. 


614  The  Exclusion  and  Expulsion  of  Aliens. 


CHAPTER  VI. 


DEPORTATION  PROCEDURE.! 

I.  Character  in  General. 

II.  Rejection  and  Deportation. 

1.  Examination. 

2.  Appeal  to  Department. 

3.  Beopening  decided  cases. 

4.  Appeal  to  courts  by  writ  of  habeas  corpus. 

III.  Arrest  and  Deportation. 

1.  Under  the  Immigration  Law. 

(a.)  Arrest,  Method  of. 

(b.)  Deportation,  Warrant  of. 

(c.)  Appeal  to  the  courts  by  writ  of  habeas  corpus. 

2.  Under  the  Chinese  Exclusion  Laws. 

(a.)  Arrest,  Method  of. 

(b.)  Complaint  and  pleadings. 

(c.)  United  States  Commissioner,  Powers  of  under  Chinese  ex- 
clusion laws. 

(d.)  Effect  of  Commissioner’s  findings. 

(e.)  Order  of  deportation,  Sufficiency  of. 

(f.)  Appeals. 

1.  To  the  District  Court. 

(a.)  Nature  of  in  general. 

(b.)  How  taken. 

(c.)  Notice  of  appeal. 

(d.)  Effect  of. 

(e.)  Abandonment  of. 

2.  To  the  Circuit  Court  of  Appeals. 

3.  To  the  Supreme  Court  of  the  United  States. 

(a.)  By  appeal  direct  from  district  or  circuit  court. 

(b.)  By  certification  from  the  circuit  court  of  appeals. 

iThis  chapter  does  not  pretend  to  be  an  exhaustive  thesis  on  the  pro- 
cedure and  practice.  The  effort  therein  made  is  merely  to  outline  in  a 
general  way  the  main  features  of  procedure  and  practice  that  arise  in  con- 
nection with  the  enforcement  of  the  immigration  and  Chinese  exclusion  laws 
in  both  the  administrative  and  the  judicial  branches  thereof,  and  to  cite 
or  quote  from  the  leading  decisions  of  the  courts  that  affect  more  or  less 
directly  the  subject  in  hand.  For  full  information  with  respect  to  pro- 
cedure and  practice  in  the  Federal  courts,  it  will  be  necessary,  of  course,  to 
consult  some  work  dealing  particularly  with  that  subject. 


Deportation  Procedure. 


615 


(c.)  By  writ  of  certiorari. 

3.  Reversal  of  findings  on  appeal. 

IV.  Release  Under  Bail  or  other  Bond. 

1.  Of  Aliens  Applying  to  Enter. 

(a.)  Under  the  Immigration  Law. 

1.  For  permanent  purposes. 

(a.)  Under  “ public  charge”  bond. 

(b.)  Under  “school  attendance”  bond. 

2.  For  Temporary  Purposes. 

(a.)  Transit  of  Japanese. 

(b.)  Treatment  in  hospital. 

(c.)  Other  temporary  purposes. 

3.  In  connection  with  a Writ  of  Habeas  Corpus. 

4.  For  use  as  witnesses. 

(b.)  Under  the  Chinese  Exclusion  Laws. 

1.  Pending  investigation  and  determination  of  status. 

2.  For  transit  through  the  United  States. 

3.  For  Chinese  seamen  discharged  or  on  shore  leave. 

4.  In  connection  with  a writ  of  habeas  corpus. 

5.  For  use  as  witnesses. 

2.  Of  Aliens  Arrested  Within  the  Country. 

(a.)  Under  the  Immigration  law. 

1.  Pending  issuance  of  deportation  warrant. 

2.  In  connection  with  a writ  of  habeas  corpus. 

, 3.  For  use  as  witnesses. 

(b.)  Under  the  Chinese  exclusion  laws. 

1.  In  general. 

2.  Pending  hearing  before  United  States  Commissioner. 

3.  Pending  decision  on  appeal. 

4.  For  use  as  witnesses. 

V.  Place  to  which  Deported. 

1.  Under  the  Immigration  Law. 

(a.)  Of  aliens  refused  admission. 

1.  At  seaports. 

2.  At  land  border  ports. 

(b.)  Of  aliens  arrested  within  the  country. 

(c.)  Power  of  courts  to  interfere  if  wrong  country  selected. 

2.  Under  the  Chinese  Exclusion  Laws. 

(a.)  Of  Chinese  refused  admission. 

1.  AUTSeaports. 

2.  At  land  border  ports. 

(b.)  Of  Chinese  arrested  within  the  country. 


616  The  Exclusion  and  Expulsion  of  Aliens. 


I.  Character  in  General. 

The  procedure  prescribed  by  Congress  for  the  deporta- 
tion of  aliens  under  the  Chinese  exclusion  and  immigra- 
tion acts,  although  providing  for  the  arrest  and  detention 
of  aliens  proceeded  against,  is  not  criminal  in  its  nature, 
and  does  not  involve  the  right  to  a trial  by  jury.2  It  is 
essentially  of  a civil  character  and  constitutes  merely  a 
method  of  enforcing  the  return  to  his  own  country  of  an 
alien  held  to  be  unlawfully  in  the  United  States,3  or  found 
not  to  be  qualified  to  enter  under  the  exclusion  laws;  and 
deportation  thereunder  does  not  constitute  a punishment 
for  crime.4  The  arrest  or  temporary  detention  of  an  alien 
in  such  proceedings  is  no  more  than  a necessary  incident 
thereof,  as  part  of  the  means  required  to  give  effect  to  the 
acts  of  exclusion  or  expulsion  passed  by  Congress  in  the 
exercise  of  its  constitutional  right  to  exclude  or  expel;5 
but  Congress  cannot,  in  providing  a civil  method  of  po- 
litical administration,  include  therein  a provision  to  the 
effect  that  an  alien  held  in  deportation  proceedings  to  be 
unlawfully  in  the  United  States  can,  as  the  result  of  such 
finding,  be  sentenced  to  serve  a term  in  jail  at  hard  labor.6 

Constituting,  as  these  proceedings  do,  merely  a method 
of  enforcing  a nation’s  right  to  expel  aliens  who  are  un- 
lawfully in  this  country,  or  to  prevent  their  entrance  in 

2Li  Sing  v.  United  States,  180  U.  S.  486,  45  Law  Ed.  634;  Fong  Yue 
Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905;  Sire  v.  Berkshire, 
185  Fed.  967 ; Tom  Wah  v.  United  States,  163  Fed.  1008 ; In  re  Lam  Jung 
Smg,  150  Fed.  608;  Toy  Tong  v.  United  States,  146  Fed.  343;  Low  Foon 
Yin  v.  United  States  Immigration  Commissioner,  145  Fed.  791;  United 
States  v.  Hung  Chang,  134  Fed.  19;  In  re  Tsu  Tse  Mee,  81  Fed.  562;  In 
re  Chow  Goo  Pooi,  25  Fed.  77. 

3Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  37  Law  Ed.  905. 

Wong  Wing  v.  United  States,  163  U.  S.  228,  41  Law  Ed.  140; 
United  States  v.  Ngum  Lun  May,  153  Fed.  209 ; United  States  v.  Wong  Dep 
Ken,  57  Fed.  206;  United  States  v.  Chin  King  Hee,  3 U.  S.  D.  Ct.  Hawaii 
556. 

5Wong  Wing  v.  United  States,  163  U.  S.  228,  41  Law  Ed.  140. 

6 Ibid. 


Deportation  Procedure. 


617 


violation  of  the  law,  but  who  have  been  guilty  of  no  crime 
in  coming  or  attempting  to  remain,  no  formal  pleading 
or  complaint  is  required  in  proceedings  regarding  the 
right  of  an  alien  to  enter  or  remain,  and  the  want  thereof 
does  not  affect  the  authority  of  the  presiding  officer  or  the 
validity  of  the  statute  by  authority  of  which  the  proceed- 
ings are  held  ;7  nor  will  defects  in  the  complaint  or  plead- 
ings deprive  quasi- judicial  officers  of  their  jurisdiction  to 
pass  upon  the  right  of  Chinese  laborers  to  remain  in  the 
United  States.8  It  has  been  held  that  in  deportation  pro- 
ceedings before  a collector  of  customs,  while  he  was  em- 
powered to  administer  oaths,  he  was  under  no  obligation 
to  do  so  or  to  make  written  findings,9  or  to  hear  or  per- 
mit the  presence  of  defendant’s  counsel,  and  that  he  might 
take  additional  depositions  of  adverse  witnesses  after 
rendering  a decision  favorable  to  the  applicant  for  admis- 
sion and  change  his  decision  accordingly.10  If  has  also 
been  held  that  a Chinese  applicant  for  admission  has  no 
right  to  be  present  himself  or  by  counsel  at  a hearing  held 
by  departmental  officers  as  to  his  admissibility,  or  to  be 
informed  of  the  nature  of  the  testimony  given  against 
him,11  and  that  an  alien  seeking  admission  has  no  right 
to  be  represented  by  counsel  before  the  board  of  special 
inquiry.12  These  decisions  support  the  construction  which 
has  always  been  placed  by  administrative  officers  upon  the 
provision  of  section  25  of  the  immigration  act  that  hear- 
ings before  boards  of  special  inquiry  “shall  be  separate 
and  apart  from  the  public,”  i.  e.,  that  counsel  shall  not  be 
allowed  to  participate  in  such  hearings;  also  the  provi- 

7 Ah  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619;  Fong  Yue 
Ting  v.  United  States,  149  U.  S.  698,  57  Law  Ed.  905;  9 Appeal  Cases 
D.  C.  290. 

8Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121. 

9In  re  Way  Tai,  96  Fed.  484. 

10 In  re  Leong  Yonk  Tong,  90  Fed.  648. 

11  In  re  Can  Pon,  168  Fed.  479. 

12In  re  Buccino,  190  Fed.  897 ; United  States  ex  rel.  Falco  v.  Williams, 
191  Fed.  1001. 


618  The  Exclusion  and  Expulsion  of  Aliens. 

sions  in  rule  22  of  the  immigration  rules  regarding  the 
limited  participation  of  counsel  in  proceedings  under  war- 
rants of  arrest,13  and  the  similar  provision  in  rule  4 of  the 
Chinese  regulations14  excluding  counsel  from  hearings. 
The  last-mentioned  rule  was  quoted  by  the  United  States 
Supreme  Court  with  apparent  approval  in  the  United 
States  v.  Sing  Tuck  et  al.,15  in  which  it  was  held  that  a 
further  provision  in  the  rule,  requiring  the  separate  ex- 
amination of  witnesses  in  the  hearings  accorded  Chinese 
applicants  for  admission,  was  valid,  being  in  accord  with 
the  common  practice  of  taking  precautions  in  court  pro- 
ceedings to  prevent  one  witness  from  overhearing  the  testi- 
mony given  by  another.16  Under  the  immigration  Act  of 
March  3,  1891,  it  was  not  even  necessary  that  immigra- 
tion officials  should  take  any  testimony  at  all,  but  they 
might  decide  that  an  alien  was  ineligible  to  land  merely 
by  personally  “inspecting”  him.17  But  the  present  law 
specifically  requires  that  testimony  shall  be  taken.18 

While  “regular  procedure”  must  be  followed  by  immi- 
gration officials  in  administering  the  provisions  of  law 
regarding  the  deportation  of  aliens,  it  is  only  a “sub- 
stantial conformity  of  the  procedure  to  such  requirements 
that  is  demanded  and  a technical  precision  in  the  ex- 
emplification of  the  record  is  not  to  be  looked  for.”  19 

Deportation  proceedings  are  not  “causes”  within  the 
meaning  of  section  566  of  the  Revised  Statutes  of  the 
United  States.20  Being  civil  and  not  criminal,  the  ordi- 
nary rules  of  evidence  have  no  application,21  and  defend- 

m Post,  624. 

^Appendix. 

15194  U.  S.  161;  48  L.  Ed.  917. 

16 Ibid.,  p.  170. 

iTNishimura  Ekiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146. 

isSection  25,  Aet  of  1907. 

i»United  States  ex  rel.  Barlin  v.  Rodgers,  191  Fed.  970. 

zoToy  Tong  v.  United  States,  146  Fed.  343. 

2i/ n re  Jem  Yuen,  188  Fed.  350. 


Deportation  Procedure. 


619 


ants  can  be  required  to  testify  for  the  Government.22  It 
follows  that  defendants  can  be  punished  for  contempt  for 
refusal  to  testify  in  the  judicial  or  quasi- judicial  pro- 
ceedings which  the  law  requires  for  testing  their  right  to 
remain  in  this  country.23 

The  procedure  followed  in  effecting  the  deportation  of 
aliens  is  of  two  distinct  kinds,  first,  that  under  which 
aliens  detained  at  ports  of  entry  are  returned  to  the  port 
of  foreign  embarkation,  and,  second,  that  in  accordance 
with  which  aliens  who  have  already  entered  the  United 
States  are  expelled  to  the  country  of  origin. 

II.  Rejection  and  Deportation. 

1.  Examination. 

All  aliens,  including  those  of  the  Chinese  race  or  of 
Chinese  descent24  are,  upon  arrival  at  a port  of  this  coun- 
try, subject  to  the  inspection  provided  by  the  immigration 
law.25  In  the  case  of  Chinese,  inspection  occurs  first  under 
the  immigration  law ; then,  if  found  admissible,  the  appli- 
cant is  examined  in  accordance  with  the  laws  relating 
specifically  to  Chinese  persons  and  persons  of  Chinese  de- 
scent.26 

Inspection  under  the  two  sets  of  laws  and  regulations 
differs  in  one  material  respect  only,  viz:  those  found  not 
admissible  on  primary  inspection  under  the  immigration 
law  are  held  for  more  careful  examination  by  a board  of 
special  inquiry  with  full  powers  to  admit  or  reject;  while 

22Lau  Chin  Woon  v.  United  States,  147  Fed.  227;  Lee  Yuen  Sue  v. 
United  States,  146  Fed.  670;  Low  Foon  Yin  v.  United  States  Immigration 
Commissioner,  145  Fed.  791. 

23Tom  Wah  v.  United  States,  163  Fed.  1008,  affirming  160  Fed.  207. 

2424  Op.  Atty.  Gen.  706,  1903;  Ex  parte  Chow  Chock  et  al.,  161  Fed. 
627,  affirmed  in  163  Fed.  1021;  Ex  parte  Lee  Sher  Wing,  164  Fed.  506; 
Looe  Shee  v.  North,  170  Fed.  566;  Ex  parte  Li  Dick,  174  Fed.  674;  Ex 
parte  Li  Dick,  175  Fed.  998;  Ex  parte  Wong  You  et  al.,  176  Fed.  933; 
United  States  v.  Wong  You,  223  U.  S.  67,  56  Law  Ed. . 

26Kule  4,  Immigration  Rules. 

26Rule  3,  Chinese  Regulations,  Append. 


620  The  Exclusion  and  Expulsion  of  Aliens. 

those  found  inadmissible  under  the  Chinese  exclusion  laws 
are  detained  and  thoroughly  examined  by  an  inspector, 
who  reports  to  the  commissioner  of  immigration  or  in- 
spector in  charge  at  the  port,  by  whom  the  case  is  decided. 

While  section  866  of  the  Revised  Statutes27  provides 
that  a circuit  court  may  direct  depositions  to  be  taken  in 
perpetuam  rei  memoriam , such  provision  applies  only  to 
“matters  cognizable  in  any  court  of  the  United  States,” 
and  testimony  so  taken  for  the  purpose  of  showing  that  a 
Chinese  person  living  in  and  about  to  leave  the  United 
States,  was  born  in  this  country  and  is  therefore  not  an 
alien,  need  not  be  regarded  as  conclusive  by  immigration 
officers  who  examine  such  person  on  his  return,  and  if  said 
officers  hold  such  person  is  not  a citizen,  their  decision  will 
not  be  reviewed  by  a court  under  a writ  of  habeas  corpus 
merely  because  the  perpetuated  testimony  has  been  dis- 
regarded.28 

2.  Appeal  to  the  Department. 

Whether  the  order  of  deportation  is  issued  by  a board  of 
special  inquiry  or  by  a commissioner  or  inspector  in 
charge,  an  appeal  lies  (except  in  certain  specified  cases  of 
rejection  by  a board)29  to  the  Secretary  of  Commerce  and 
Labor,30  such  appeal  being  submitted  through  the  Commis- 
sioner General  of  Immigration,  who  places  the  record 
before  the  Secretary  with  his  conclusions  and  recommen- 
dation attached  thereto.  From  an  admitting  decision 
under  the  Chinese  exclusion  laws  there  is  no  appeal,  but 
under  section  25  of  the  immigration  act  the  third  member 
of  a board  of  special  inquiry  may  appeal  from  an  admit- 
ting decision  voted  by  two  members  of  said  board. 

3.  Reopening  Decided  Cases. 

In  practice  the  ends  of  justice  sometimes  require  that  a 
case  in  which  the  alien  has  been  rejected  by  a board  of 

27U.  S.  Comp.  Stat.,  1901,  p.  664. 

**Ex  parte  Wing  You,  190  Fed.  294. 

29Section  10,  Act  of  1907. 

30Rule  17,  Immigration  Rules;  Rule  5,  Chinese  Regulations,  Append. 


Deportation  Procedure. 


621 


special  inquiry  shall  be  reopened  before  such  board  for 
the  consideration  of  additional  evidence.  This  is  accom- 
plished, if  an  appeal  has  not  been  taken  or  if  the  appeal 
record  has  not  yet  been  forwarded  to  the  Commissioner 
General  of  Immigration,  by  an  order  to  the  board  from  the 
immigration  official  in  charge  at  the  port;  if  the  record 
has  been  forwarded  to  the  Commissioner  General,  but  has 
not  yet  been  submitted  by  him  to  the  Secretary  of  Com- 
merce and  Labor,  by  an  order  from  the  Commissioner  Gen- 
eral ; or,  if  the  record  has  been  placed  before  the  Secretary, 
by  an  order  from  him,  the  order  in  either  case  being  served 
on  the  board  through  the  official  in  charge  at  the  port. 
The  effect  of  the  reopening  is  to  again  vest  the  board  with 
full  power  to  decide  the  case ; so  that  it  can  either  reaffirm 
or  reverse  its  former  finding.  In  the  case  of  Chinese  ex- 
amined under  the  Chinese  exclusion  laws,  the  practice  is 
the  same,  except  that,  no  board  of  special  inquiry  being 
used,  the  order  for  reopening  is  addressed  to  the  official  in 
charge  by  the  Commissioner  General  or  Secretary  as  the 
case  may  be. 

4.  Appeal  to  the  Courts  by  Writ  of  Habeas  Corpus. 

The  subject  of  the  judicial  review  of  administrative 
proceedings  forms  a separate  chapter  of  this  work.31  As 
is  there  shown,  an  appeal  to  the  courts  through 
recourse  to  the  writ  of  habeas  corpus  is  available 
to  the  alien  only  (a)  if  the  excluding  decision  of  the  execu- 
tive officer  involves  the  decision  of  a question  of  law,  or 
(b)  if  it  appears  by  the  record  that  the  petitioner  has  been 
denied  a fair  hearing. 

The  procedure  for  determining  whether  the  writ  lies 
differs  at  different  ports.  For  instance,  at  New  York  and 
Philadelphia  the  practice  is  for  the  court  to  issue  the  writ 
upon  the  petitioner’s  making  a satisfactory  prima  facie 
showing  that  a point  of  law  is  involved  or  that  a hearing 


3i Ante,  p.  477. 


622  The  Exclusion  and  Expulsion  of  Aliens. 

lias  been  denied  him.32  Thereupon,  if  satisfactory  return 
is  made  to  the  writ,  the  alien  is  remanded  to  the  immigra- 
tion officers  for  deportation;  if  the  return  is  not  satisfac- 
tory the  court  examines  and  disposes  of  the  case  on  its 
merits.  At  Boston  and  San  Francisco,  on  the  other 
hand,  the  practice  is  for  the  court  to  issue  a rule  to  show 
cause  why  a writ  of  habeas  corpus  shall  not  be  granted, 
and  if  cause  is  not  satisfactorily  shown,  then,  but  then 
only,  does  the  writ  issue.33 

Under  the  Act  of  May  6,  1882,  as  amended  by  that  of 
July  5,  1884,  and  the  Act  of  1888,  the  collector  of  customs 
was  the  officer  designated  by  Congress  to  pass  upon  the 
right  of  returning  Chinese  laborers,  and  Chinese  persons 
other  than  laborers,  to  enter  the  United  States.  It  was 
held,  however,  that  the  decision  of  the  collector  was  not 
necessarily  final  as  to  the  right  of  a Chinese  person  to 
enter  the  United  States34  and  thus,  until  August  18,  1894, 
a decision  of  an  executive  officer  could  be  appealed  to  the 
courts  by  means  of  a writ  of  habeas  corpus,  except  in  cases 
where  the  decision  covered  matters  purely  of  fact  and  was 
rendered  in  the  due  exercise  of  the  discretion  vested  in  the 
executive  officer. 

The  Act  of  August  18,  1894,  provided  that  “in  every 
case  where  an  alien  is  excluded  from  admission  into  the 
United  States  under  any  law  or  treaty  now  existing  or 
hereafter  made,  the  decision  of  the  appropriate  immigra- 
tion or  customs  officers,  if  adverse  to  the  admission  of  such 
alien,  shall  be  final  unless  reversed  on  appeal  to  the  Secre- 
tary of  the  Treasury.”  35  Therefore,  the  only  right  of  ap- 
peal enjoyed  by  a Chinese  person  seeking  to  enter  the 
United  States  and  rejected  by  the  proper  inspecting  officer, 

32United  States  ex  rel.  Canfora  v.  Williams  186  Fed.  354;  United  States 
ex  rel.  Di  Rienzo  v.  Rodgers,  185  Fed.  334;  United  States  ex  rel.  Barlin  v. 
Rodgers,  191  Fed.  970. 

s *Ex  parte  Avakian,  and  Ex  parte  Kaprelian,  188  Fed.  688;  Looe  Shee 
v.  North,  170  Fed.  566. 

«4United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  31  Law  Ed.  591. 

sbNow  Secretary  of  Commerce  and  Labor,  32  Stat.  828. 


Deportation  Procedure. 


623 


is  this  appeal  to  the  Secretary  of  Commerce  and  Labor. 
It  has  been  definitely  decided  that,  in  limiting  the  right  of 
appeal  to  the  Secretary,  the  act  is  constitutional,  and  that 
the  effect  of  the  act  is  to  entrust  to  executive  officers  the 
final  decision  as  to  the  right  of  the  alien  to  enter.36 
The  decision,  to  be  valid,  must  not  be  arbitrary,  but  must 
be  the  result  of  a fair  hearing,37  and  must  not  involve  the 
determination  of  a question  of  law.38 

The  question  of  the  right  of  the  courts  to  intervene 
in  immigration  and  Chinese  cases  by  habeas  corpus  is 
discussed  at  length  elsewhere.39  An  application  for  a writ 
of  habeas  corpus  must  be  filed  in  the  district  court  of  the 
district  in  which  the  alien  is  being  Restrained  of  his  lib- 
erty.Formerly,  i.  e.,  before  the  new  Judicial  Code40 
took  effect,  the  application  could  be  made  to  either  a cir- 
cuit or  a district  court.  Once  such  cases  have  come  before 
the  courts,  the  procedure  with  respect  to  their  trial  and 
their  appeal  to  higher  courts,  and  the  grounds  on  which 
such  appeals  may  be  taken,  do  not  differ  materially  from 
those  that  obtain  in  the  cases  of  Chinese  arrested  within 
the  country,  discussed  hereinafter.41 

III.  Arrest  and  Deportation. 

1.  Under  the  Immigration  Law. 

( a. ) Arrest — Method  of. 

Sections  20  and  21  of  the  immigration  act  provide  that 
any  alien  who  shall  enter  the  United  States  in  violation  of 
law,  and  such  as  become  public  charges  from  causes  exist- 
ing prior  to  landing  shall,  when  found  by  the  Secretary 

S6United  States  v.  Ju  Toy,  198  U.  S.  255,  49  Law  Ed.  1040;  Chin  Yow 
v.  United  States,  208  U.  S.  8,  52  Law  Ed.  369. 

37  ibid. 

ssGonzales  v.  Williams,  192  U.  S.  1,  48  Law  Ed.  317. 

»9Chapter  on  Judicial  Review  of  Administrative  Decisions  ante,  p.  477. 

4036  Stat.  1087. 

4i Post,  p.  637. 


624  The  Exclusion  and  Expulsion  of  Aliens. 


of  Commerce  and  Labor  to  be  in  the  United  States  in  viola- 
tion of  said  act,  or  when  found  by  the  Secretary  to  be  sub- 
ject to  deportation  under  the  provisions  of  said  act  or  of 
any  law  of  the  United  States,  be  arrested  upon  the  warrant 
of  the  Secretary  and  taken  into  custody  and  deported  to 
the  country  whence  he  came  at  any  time  within  three 
years  after  the  date  of  entry  into  the  United  States. 

By  rule  22  of  the  immigration  rules  officers  are  enjoined 
to  make  a thorough  investigation  of  all  cases  where  they 
are  credibly  informed,  or  have  reason  to  believe,  that  an 
alien  in  the  United  States  is  subject  to  arrest  and  deporta- 
tion on  warrant  under  these  sections.  When  an  officer  is 
so  satisfied,  he  must  make  an  application  for  the  issuance 
of  the  warrant,  stating  therein  the  existence  of  facts  which 
show  that  the  alien  belongs  to  one  or  more  classes  subject 
to  deportation  after  entry.  The  proof  of  these  facts  must 
be  the  best  that  can  be  obtained.  After  the  warrant  has 
been  issued  in  pursuance  of  the  application  and  upon  re- 
ceipt thereof  by  the  officer,  the  alien  is  to  be  taken  before 
the  person  therein  described  and  granted  a hearing  in 
order  that  he  may  show  cause  why  he  should  not  be  de- 
ported. Pending  the  determination  of  his  case  he  may,  at 
the  discretion  of  the  immigration  officer  in  charge,  be 
taken  into  custody  or  allowed  to  remain  in  some  place 
deemed  by  such  officer  secure  and  proper.  During  the 
course  of  the  hearing  the  alien  shall  be  allowed  to  inspect 
the  warrant  of  arrest  and  all  the  evidence  on  which  it  was 
issued;  and,  at  such  stage  thereof  as  the  officer  before 
whom  the  hearing  is  held  shall  deem  proper,  he  shall  be 
apprised  that  he  may  thereafter  be  represented  by  counsel, 
and  shall  be  required  then  and  there  to  state  whether  he 
desires  counsel  or  waives  the  same.42  If  he  decides  to 
employ  the  services  of  counsel  and  selects  one  for  this 
purpose,  the  latter  shall  be  permitted  to  be  present  during 

42Such  a hearing  before  an  immigration  official  on  an  appeal  before  the 
Secretary  of  Commerce  and  Labor  with  counsel  constitutes  due  process  of 
law.  Sire  v.  Berkshire  et  al.,  185  Fed.  967. 


Deportation  Procedure. 


625 


the  further  conduct  of  the  hearing,  to  inspect  and  copy  the 
minutes  thereof  so  far  as  it  has  proceeded,  and  to  offer 
evidence  to  meet  any  evidence  theretofore  or  thereafter 
presented  by  the  Government.  This  provision  regarding 
counsel  is  supported  in  a general  manner  by  the  decisions 
concerning  counsel  before  boards  of  special  inquiry.43  If, 
however,  the  failure  of  an  arrested  alien  to  employ  counsel 
is  due  to  intimidation  by  an  immigration  officer,  the  war- 
rant and  proceedings  thereunder  are  invalid,  and  the  alien 
will  be  released  on  habeas  corpus.**  The  alien’s  right  to 
counsel  is  satisfied,  however,  if  he  is  represented  before 
the  Secretary  of  Commerce  and  Labor  by  counsel,  al- 
though not  so  represented  in  the  hearing  before  the  immi- 
gration inspectors.45  It  has  also  been  held  by  a circuit 
court  that  deportation  proceedings  are  invalid  if  the  ar- 
rested alien  is  given  no  notice  and  afforded  no  opportunity 
to  be  present  in  person  when  evidence  is  being  taken  from 
sworn  witnesses  ;46  also  in  a case  where  the  arrested  alien 
was  charged  with  importing  a foreign  woman  for  immoral 
purposes  and  with  having  admitted  the  commission  of 
crimes  or  misdemeanors  involving  moral  turpitude  prior 
to  entry,  and  where  three  hearings  were  held  at  which 
counsel  was  not  present,  at  the  first  of  which  only  the 
arrested  alien  was  present,  and  at  the  second  and  third  of 
which  witnesses  were  sworn  and  the  accused  not  brought 
face  to  face  with  them,  there  being  no  opportunity  for 
cross-examination.47  Both  of  these  cases  were  reversed  by 
the  Circuit  Court  of  Appeals,  Third  Circuit,48  however, 
although  not  upon  this  ground;  and,  in  view  of  the  de- 
cisions to  which  reference  has  already  been  had,  it  may  be 
seriously  doubted  whether  either  of  them  is  sound.  The 

43Cited,  ante , p.  617. 

44United  States  ex  rel.  Bosny  v.  Williams,  185  Fed.  598. 

45Sire  v.  Berkshire,  185  Fed.  967. 

46United  States  ex  rel.  Huber  v.  Sibray,  178  Fed.  150. 

47United  States  ex  rel.  Huber  v.  Sibray,  178  Fed.  144. 

48Sibray  v.  United  States  ex  rel.  Kupples,  Statlichnitzer  and  Huber,  185 
Fed.  401. 


626  The  Exclusion  and  Expulsion  of  Aliens. 

tendency  of  the  courts  has  generally  been  to  regard  these 
proceedings  as  summary  and  informal — not  subject  to  the 
technicalities  which  obtain  in  court  proceedings.  The 
allegation  in  a warrant  of  arrest  that  an  alien  entered  the 
United  States  without  inspection  is  equivalent  to  an  alle- 
gation that  he  is  in  the  country  in  violation  of  law,  and  is 
sufficient  to  sustain  a finding  to  the  latter  effect.49  At 
the  close  of  the  hearing  the  complete  record  is  for- 
warded to  the  Bureau  of  Immigration  and  Naturalization, 
together  with  any  written  argument  submitted  by  counsel 
and  the  recommendations  of  the  examining  officer  and 
the  officer  in  charge,  for  the  purpose  of  determining 
whether  or  not  a warrant  for  deportation  shall  issue  as  a 
result  of  the  showing  made  in  the  hearing. 

(b.)  Deportation — Warrant  of. 

If,  after  due  consideration  of  the  facts  as  disclosed  by 
the  record,  the  Department  finds  that  the  arguments  sub- 
mitted at  the  hearing  in  support  of  the  alien’s  alleged  right 
to  remain  are  insufficient,  a warrant  of  deportation  is 
duly  issued  by  the  Secretary,  and  on  receipt  thereof  by  the 
proper  officer  the  alien  is  taken  into  custody  of  the  immi- 
gration officials  (if  this  has  not  already  occurred)  for  de- 
portation, and  thereafter  deported. 

No  question  of  an  administrative  appeal  can  arise  where 
an  alien  is  arrested  on  the  Secretary’s  warrant  and  subse- 
quently ordered  deported,  since  the  proceedings  are  initi- 
ated as  a direct  result  of  the  Secretary’s  issuance  of  the 
warrant  in  the  first  instance,  and  the  hearing,  while  not, 
of  course,  had  before  him  personally,  is  conducted  before 
an  officer  to  whom  his  authority  is  delegated  in  the  war- 
rant, and  the  entire  record  so  formed  goes  before  the  Sec- 
retary (or  Department)  for  consideration.  Cases  arising 
under  warrant  procedure  differ  in  this  respect,  as  far  as 
actual  provisions  of  the  immigration  law  are  concerned, 
from  those  arising  at  ports  in  which  aliens  are  refused  ad- 
49  Ex  parte  Hamaguchi,  161  Fed.  185. 


Deportation  Procedure. 


627 


mission  to  this  country  by  a board  of  special  inquiry.  In 
the  latter  class  of  cases  an  appeal  from  the  board  is  spec- 
ially provided  by  section  25  of  the  immigration  act.  But 
in  practical  operation  the  administrative  methods  pre- 
scribed by  the  rule  bring  about  the  same  result,  since  the 
issuance  of  two  separate  warrants — the  warrant  of  arrest 
and  the  warrant  of  deportation — is  required.  In  both 
classes  of  cases  the  Secretary  really  passes  as  a final  court 
on  the  evidence  which  has  been  submitted  or  adduced  by 
those  officers  whose  duty  it  was  to  hear  the  case  in  the  first 
instance. 

(c.)  Appeal  to  the  Courts  by  Writ  of  Habeas  Corpus. 

What  has  been  said  on  this  subject  in  connection  with 
cases  arising  at  ports  of  entry50  applies  generally  to  cases 
arising  within  the  country.  While  the  law  provides  in  sec- 
tion 25  that  on  appeal  from  findings  of  boards  of 
special  inquiry,  other  than  those  made  absolutely  final 
by  section  10,  the  decision  of  the  Secretary  of  Commerce 
and  Labor  shall  be  final,  the  act  nowhere  contains  the  pro- 
vision that  the  Secretary’s  decision  that  an  alien  already 
in  the  country  is  unlawfully  there  is  final  with  regard  to 
his  right  to  remain.  The  absence  of  such  provision  has 
had  its  effect  on  the  judicial  mind  in  various  decisions  in- 
volving a consideration  of  the  question  of  the  authority 
of  the  courts  to  review  the  decision  reached  by  the  Secre- 
tary as  to  the  right  of  an  alien  to  remain  in  the  country. 
But  it  has  nowhere  been  held  that  the  courts  have  the 
right  to  pass  upon  the  Secretary’s  finding  merely  because 
the  decision  reached  by  him  might  not  have  been  reached 
by  a court,  and  where  no  question  except  the  correctness 
of  the  finding  of  fact  was  involved.  It  is  safe  to  say  that 
the  only  grounds  of  appeal  open  to  the  alien  who  has 
been  found  by  the  Secretary  to  be  unlawfully  in  the  United 
States  are  those  available  to  one  who  has  been  refused 
admission  to  the  United  States  by  a final  decision  emanat- 

soAnte , p.  621. 


628  The  Exclusion  and  Expulsion  of  Aliens. 

ing  from  the  same  source,  to  wit,  the  plea  that  he  has  been 
deprived  of  a fair  hearing  or  that  in  denying  him  the  right 
to  remain  the  Secretary  has  been  mistaken  in  his  view  as 
to  the  application  or  interpretation  of  the  law, 

2.  Under  the  Chinese  Exclusion  Laws. 

(a.)  Arrest — Method  of. 

Section  2 of  the  Act  of  May  5,  1892,  provides  that  any 
Chinese  person  or  person  of  Chinese  descent,  when 
convicted  and  adjudged  to  be  not  lawfully  entitled 
to  remain  in  the  United  States  shall  be  removed  from 
the  United  States  to  China,  unless  he  shall  make  it 
appear  to  the  justice,  judge,  or  commissioner  before 
whom  tried  that  he  is  a subject  or  citizen  of  some  other 
country,  in  which  case  he  shall  be  removed  from  the 
United  States  to  such  other  country.  Section  6 of  said 
act,  as  amended  by  the  Act  of  1893,  provides  for  the  arrest 
of  any  Chinese  laborer  within  the  United  States  who  shall 
have  failed  to  obtain  the  certificate  of  registration  re- 
quired by  said  act.  By  section  3 of  the  Act  of  March  3, 
1901,  it  is  provided  that  no  warrant  of  arrest  shall  be 
issued  by  a United  States  commissioner  except  upon  the 
sworn  complaint  of  a United  States  attorney  or  his  as- 
sistant, a collector,  deputy  collector,  or  inspector  of  cus- 
toms, a Chinese  or  immigrant  inspector,  or  a United  States 
marshal  or  his  deputy,  unless  its  issuance  shall  first  be  ap- 
proved by  the  United  States  attorney  of  the  district  in 
which  issued.  Section  6 of  the  Act  of  1892  provides  that 
after  arrest  the  alien  shall  be  taken  before  a United  States 
judge  (or  commissioner),51  whose  duty  it  shall  be  to  order 
his  deportation  unless  he  shall  clearly  establish  in  the 
method  provided  by  the  section  his  right  to  remain  in  the 
United  States. 

By  rule  23  of  the  Chinese  regulations  of  the  Department 
of  Commerce  and  Labor,  instructions  are  given  immigra- 

5i Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  112;  Fong 
May  Yuk  v.  United  States,  113  Fed.  898. 


Deportation  Procedure. 


629 


tion  officials  to  arrest  “Chinese  found  in  the  United  States 
engaged  in  laboring  pursuits  and  not  having  in  their  pos- 
session   satisfactory  evidence  of  their  right  to  be  and 

remain  in  the  country/’  after  according  them  “full  op- 
portunity to  produce  the  certificate  or  other  evidence,” 
such  arrest  to  be  made  on  a warrant  secured  from  a “jus- 
tice, judge,  or  commissioner  of  a United  States  court.” 
Said  rule  also  provides  that  “Chinese  who  enter  the 
United  States  surreptitiously”  (and,  as  already  shown,52 
this  includes  all  Chinese  without  regard  to  occupational 
status)  shall  be  arrested  and  deported  under  the  summary 
method  provided  by  the  immigration  act53  and  rule  22  of 
the  immigration  rules.  Rules  24  and  25  of  the  Chinese 
regulations  make  provision  for  the  proper  identification 
of  Chinese  laborers  arrested  under  judicial  process,  and 
for  the  payment  of  expenses  incident  to  deportation. 
Those  arrested  as  aliens  merely  are,  of  course,  handled  in 
the  same  way  as  other  aliens — in  accordance  with  immi- 
gration rule  22. 

(b.)  Complaint  and  Pleadings. 

Since  no  particular  form  is  required  with  regard  to 
either  the  complaint  or  pleadings  in  deportation  pro- 
cedure, where,  on  appeal,  objection  is  made  to  the 
validity  of  the  process  and  the  arrest,  the  court  does 
not  lose  jurisdiction.54  The  official  titles  employed  in 
section  3 of  the  Act  of  March  3,  1901,  in  describing 
the  persons  entitled  to  make  the  complaint  are  mere 
descrip tio  personae ; hence,  where  a complaint  is  made 
by  a Chinese  inspector  it  is  immaterial  that  it  was 
filed  with  a United  States  commissioner  located  outside 
of  the  inspector’s  official  district.55  But  a district  court 
will  not  assume  jurisdiction  over  a Chinese  person  already 

52 Ante,  p.  274  et  seq. 

53Sections  20,  21,  35,  36. 

5*Toy  Tong  et  al.  v.  United  States,  146  Fed.  343. 

55Toy  Tong  et  al.  v.  United  States,  146  Fed.  343. 

56United  States  v.  Luey  Guey  Auck,  115  Fed.  252. 


630  The  Exclusion  and  Expulsion  of  Aliens. 

ordered  deported  in  another  district  but  will  dismiss  the 
case.56  Arrest  on  formal  complaint  under  oath  is  not 
necessary,  and  is  not  a prerequisite  to  the  power  of  the 
judge  to  grant  the  order  of  deportation  ;57  nor  is  the  com- 
missioner deprived  of  jurisdiction  by  the  lack  in  the  com- 
plaint of  positive  averments  of  facts  as  to  the  official  char- 
acter of  the  person  making  it.58  As  no  formal  complaint 
is  required,59  a complaint  alleging  the  residence  in  this 
country  of  a Chinese  person  on  May  5,  1892,  is  surplusage 
and  cannot  take  the  place  of  evidence  to  that  effect  to  be 
established  by  the  defendant.60 

Where  the  complaint  alleges  that  a Chinese  person 
was  here  without  a certificate  and  the  finding  is  that  the 
defendant  was  here  unlawfully  and  had  entered  unlaw- 
fully, the  general  finding  that  he  was  unlawfully  here  will 
support  the  judgment.61 

The  warrant  will  not  be  refused  by  a district  judge  who 
has  no  judicial  knowledge  that  the  executive  department 
is  without  the  funds  necessary  to  deport  a Chinese 
person  under  the  Act  of  May  5,  1892  ;62  and  where  Con- 
gress has  appropriated  funds  for  the  enforcement  of  the 
exclusion  laws,  a court  should  assume  that  those  funds  are 
available  for  the  enforcement  of  each  section  of  such 
laws,  and  should  order  the  deportation  of  a Chinese  shown 
to  be  in  the  United  States  in  violation  of  section  6 of  the 
Act  of  1892,  although  the  court  is  informed  by  the  Attor- 
ney General  that  the  funds  are  not  available  for  removing 
the  Chinese  from  the  country.63  Owing  to  the  informal 
nature  of  deportation  proceedings,  informalities  or  irregu- 
larities in  the  warrant  will  not  destroy  its  effect;  thus  a 
warrant  issued  under  the  Act  of  March  3,  1901,  is  good, 

579  Appeals  D.  C.  290. 

58Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121. 

59Ah  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619. 

eoUnited  States  v.  Williams,  83  Fed.  997. 

6i In  re  Gut  Lun,  83  Fed.  141. 

62 in  re  Lintner,  57  Fed.  587. 

«3United  States  v.  Chum  Shang  Yuen,  57  Fed.  588. 


Deportation  Procedure. 


631 


although  filed  by  the  Chinese  inspector  with  a United 
States  commissioner  outside  of  the  inspector’s  district.64 
In  general,  process  is  not  returnable  to  a district  other 
than  that  of  its  issuance,  but  the  Chinese  exclusion  Act 
of  1888  alters  this  rule  as  far  as  it  relates  to  inquiry 
regarding  the  right  of  a Chinese  person  to  be  in  the  United 
States.66 

(c.)  United  States  Commissioners — Powers  of  Under 
Chinese  Exclusion  Laws. 

United  States  commissioners  are  quasi- judicial  officers, 
and  in  hearings  before  them  under  the  Chinese  exclu- 
sion laws  they  act  judicially;66  therefore,  a Chinese  person 
refusing  to  answer  questions  put  to  him  in  proceed- 
ings had  with  a view  to  his  deportation  to  China  may 
be  punished  for  contempt  on  an  order  to  that  effect 
from  the  district  court  to  which  the  commissioner  is 
attached.67  While  the  commissioner’s  power  to  deport 
cannot  be  said  to  be  rightly  exercised  if  based  on 
the  sole  fact  that  in  deportation  proceedings  the  pris- 
oner refuses  to  do  so,  may  be  taken  into  consideration  in 
ordering  his  deportation.69  Commissioners  have  the  right 
in  deportation  proceedings  to  consider  depositions  taken 
de  bene  esse;70  but  they  are  not  courts  of  the  United  States 
in  the  sense  of  the  Constitution  and  laws.71 

The  power  with  which  commissioners  in  deportation 
cases  are  vested  by  section  12  of  the  Act  of  May  6,  1882, 
section  13  of  the  Act  of  September  13,  1888,  and  section  3 

64Toy  Tong  et  al.  v.  United  States,  146  Fed.  343. 

esUnited  States  v.  Long  Hop,  55  Fed.  58. 

eeChin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121; 
Fong  Mey  Yuk  v.  United  States,  113  Fed.  898;  Yee  Ngoy  v.  United  States, 
116  Fed.  333. 

67United  States  v.  Tom  Wah,  160  Fed.  207,  affirmed  by  Circuit  Court  of 
Appeals,  163  Fed.  1008. 

esUnited  States  v.  Leung  Shue,  126  Fed.  423. 

69United  States  v.  Moy  You,  126  Fed.  226. 

7o/ti  re  Lam  Jung  Sing,  150  Fed.  608. 

71Ex  parte  Lung  Wing' Wan,  161  Fed.  211;  see  Chin  Bak  Kan  v.  United 
States,  186  U.  S.  193,  200,  46  Law  Ed.  1121. 


632  The  Exclusion  and  Expulsion  of  Aliens. 

of  the  Act  of  March  3,  1901,  is  that  of  issuing  a warrant 
on  complaint  duly  made  under  oath  on  behalf  of  the 
United  States  by  one  of  the  officers  designated  in  the  last- 
mentioned  act,  to  hear  the  cause  based  on  such  complaint, 
and,  upon  a hearing,  to  find  and  adjudge  the  Chinese 
brought  before  them  to  be  either  lawfully  or  unlawfully 
in  the  United  States  and,  if  the  latter,  to  order  deporta- 
tion. While  clothed  with  full  authority  by  law  to  hear 
and  pass  on  deportation  cases,  the  commissioner  is  under 
no  obligation  to  do  so  in  the  face  of  a refusal  by  the  Comp- 
troller of  the  Treasury  to  pay  him  his  lawful  fees.72  If  he 
has  no  judicial  knowledge  of  the  fact  that  funds  for  the 
deportation  of  an  alien  brought  before  him  in  deporta- 
tion proceedings  are  unavailable,  he  will  order  deportation 
in  spite  of  the  assurance  by  the  Attorney  General  that  the 
funds  are  not  available.73  The  Act  of  May  5,  1892,  as 
amended  by  that  of  November  3,  1893,  which  provides 
that  Chinese  laborers  who,  within  the  period  assigned  in 
the  act,  have  not  taken  out  certificates  of  registration 
as  therein  required  shall  be  taken  before  a “United  States 
judge”  whose  duty  it  shall  be  to  order  them  deported  in 
the  absence  of  proof  to  the  satisfaction  of  said  judge  that 
their  failure  to  register  was  excusable  as  by  law  pro- 
vided, and  that  they  were  residents  of  the  United  States 
prior  to  May  5,  1892,  was  construed  to  apply  to  United 
States  commissioners  as  included  in  the  term  “United 
States  judge,”  and  to  vest  them  with  power  to  deport  in 
proper  cases.74 

Section  1 of  the  Act  of  March  3,  1901,  provides  that  it 
shall  be  lawful  for  the  district  attorney  of  the  district  in 
which  any  Chinese  person  may  be  arrested  to  designate  the 
United  States  commissioner  within  said  district  before 

72United  States  v.  Lee  Lip  et  al.,  100  Fed.  842. 

73 In  re  Lintner,  57  Fed.  587 ; United  States  v.  Chum  Shang  Yuen,  57 
Fed.  588. 

74Fong  Mey  Tuk  v.  United  States,  113  Fed.  898;  Yee  Ngoy  v.  United 
States,  116  Fed.  333;  In  re  Wong  Fock,  81  Fed.  558;  Chin  Bak  Kan  v. 
United  States,  186  U.  S.  193,  46  Law  Ed.  1121. 


Deportation  Procedure. 


633 


whom  such  Chinese  person  shall  be  taken  for  a hearing. 
In  a recent  case75  the  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit  held  that  a Chinese  laborer  who  was  found 
by  a Chinese  inspector  working  in  the  State  and  District 
of  Mississippi  and  was  induced  (although  without  force 
or  duress)  to  accompany  the  inspector  to  New  Orleans  in 
the  District  of  Louisiana,  and,  failing  to  secure  and  pro- 
duce there,  as  he  said  he  could,  a certificate  showing  his 
right  to  be  and  remain  in  the  United  States,  was  de- 
tained and  arrested  on  a warrant  obtained  from  a com- 
missioner attached  to  the  district  court  for  the  District  of 
Louisiana,  was  arrested  illegally ; and  the  court  discharged 
the  laborer  from  custody  without  prejudice  to  his  arrest 
in  the  district  in  which  he  belonged.  The  soundness  of  this 
decision  may  be  doubted,  however,  for  two  reasons:  (1) 
It  is  apparent  that  the  acts  of  1882,  1888,  and  1893,  did 
not  contemplate  that  the  authority  to  arrest  Chinese 
should  be  limited  in  the  manner  set  forth  in  this  decision  ;76 
and  an  examination  of  the  House  of  Representatives  com- 
mittee’s report  with  which  the  bill  which  became  the  Act  of 
1901  was  submitted  to  the  House,  and  the  record  of  the 
debates  thereon,  shows  that  the  purpose  of  the  meas- 
ure was  not  to  change  the  practice  allowed  under  the 
previous  acts,  but  to  permit  the  United  States  attorneys  to 
select  in  each  instance  of  arrest  the  commissioner  before 
whom  the  Chinese  should  be  tried,  and  not  permit  the 
Chinese  and  those  engaged  in  their  unlawful  entry  to 
make  their  own  selection  to  the  disadvantage  of  the  Gov- 
ernment, as  had  frequently  happened,  particularly  in  the 
Northern  District  of  New  York,  the  United  States  attor- 
ney for  which  suggested  the  passage  of  the  measure  ;77  and 
(2)  the  Chinese  alien  Chin  Tong  was  not  actually  “ar- 
rested” until  he  had  come  into  the  Louisiana  District. 

75United  States  v.  Chin  Tong,  192  Fed.  485. 

76United  States  v.  Long  Hop,  55  Fed.  58. 

77H.  R.  Report  2156,  56th  Cong.,  2d  Sess.;  Vol.  34  Cong’l  Rec.,  pp.  298, 
749,  3408,  3436,  3441,  3483. 


634  The  Exclusion  and  Expulsion  of  Aliens. 

The  Supreme  Court  has  held  that  a United  States  com- 
missioner is  authorized  to  pass  on  the  question  whether  or 
not  a Chinese  person  brought  before  him  is  a citizen  of  the 
United  States.78  He  is,  however,  without  jurisdiction  to 
pass  on  the  question  whether  the  holder  of  a certificate  is- 
sued under  the  Act  of  November  3, 1893,  obtained  the  same 
by  fraud.79  It  is  settled,  also,  that  the  power  of  the  com- 
missioner to  deport  Chinese  persons  unlawfully  in  the 
United  States  was  unaffected  by  the  articles  of  the  Treaty 
of  the  United  States  with  China  of  December  8,  1894.80 
The  authority  of  the  commissioner  when  exercised  with 
direct  regard  to  the  prisoner  must  be  limited  to  his  depor- 
tation or  detention  incident  thereto,  and  he  has  no  power 
to  inflict  imprisonment  at  hard  labor  on  any  alien  ad- 
judged by  him  to  be  deported,81  or  where  indefinite  im- 
prisonment would  result  from  the  lack  of  legislative  means 
to  deport.82  The  power  conferred  on  the  commissioner  by 
the  Chinese  exclusion  acts  is  ample  to  try  the  cases  desig- 
nated therein,  and  no  order  of  a district  judge  referring 
such  case  to  the  commissioner  for  hearing  is  either  re- 
quired or  authorized  ;83  nor  is  the  power  to  pass  on  a par- 
ticular case  taken  away  by  the  fact  that,  at  a date  preced- 
ing that  on  which  the  defendant  was  brought  before  the 
commissioner  for  trial,  a deputy  collector  refused  him  ad- 
mittance into  the  United  States,  but  entered  no  decision, 
made  no  findings,  and  heard  no  evidence  to  rebut  the 
prima  facie  showing  made  by  defendant  of  his  right  to 
enter.84  The  power  of  a commissioner  to  deport  a Chi- 
nese person  brought  before  him  in  deportation  proceedings, 

78Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121. 

79 In  re  See  Ho  How,  101  Fed.  115. 

soUnited  States  v.  Lee  Yen  Tai,  185  U.  S.  213,  46  Law  Ed.  878. 

siWong  Wing  v.  United  States,  163  U.  S.  228,  41  Law  Ed.  140;  In  re 
Ah  Yuk,  53  Fed.  781. 

82 In  re  Ny  Look,  56  Fed.  81. 

83United  States  v.  Lee  Lip  et  al.,  100  Fed.  842;  United  States  v.  Horn 
Hing,  48  Fed.  635. 

sHJnited  States  v.  Wong  Chung,  92  Fed.  141. 


Deportation  Procedure. 


635 


where  the  right  of  the  latter  to  remain  is  not  shown  to  the 
commissioner’s  satisfaction,  gives  him  a wide  discretion  in 
determining  the  existence  of  the  right.  This  discretion  has 
its  limits,  however.  The  evidence  required  from  the  de- 
fendant in  deportation  proceedings  must  only  be  sufficient 
to  satisfy  the  judgment  of  a reasonable  man,  considering 
the  same  fairly  and  impartially.  A commissioner  may  not 
arbitrarily,  capriciously,  or  against  reasonable  unim- 
peached and  credible  evidence,  uncontradicted  on  its  ma- 
terial points,  and  susceptible  of  but  one  fair  construction, 
refuse  to  be  satisfied.85 

(d.)  Effect  of  Commissioner’s  findings. 

A decision  rendered  on  the  merits  in  deportation  pro- 
ceedings discharging  the  defendant  is  final  and  conclusive 
of  the  Chinese  alien’s  right  to  remain86  in  the  absence  of 
fraud  or  bad  faith  on  the  part  of  the  commissioner.87  His 
order  of  deportation  may  be  appealed  from  by  the  defend- 
ant, as  a matter  of  right,  and  the  facts  on  which  it 
was  based  will  be  considered  de  novo  by  the  district 
court.88  His  judgment  of  deportation  will  stand  if  not 
obviously  against  the  weight  of  the  testimony.  But  the 
judgment  of  a commissioner  discharging  a Chinese  alien 
by  consent  of  the  United  States  attorney  is  not  a judgment 
on  the  merits,  and  not  conclusive  as  to  the  alien’s  right  to 
remain  in  the  United  States,89  nor  is  a written  statement 
by  a former  United  States  commissioner  that  the  China- 
man has  the  right  to  be  in  the  United  States  a judgment 
conclusive  of  such  fact  or  even  evidence  of  such  judg- 
ment;90 nor  is  his  written  statement  that  the  Chinese  per- 

85United  States  v.  Lee  Huen,  118  Fed.  442;  United  States  v.  Hnng 
Chang,  134  Fed.  19. 

86United  States  v.  Yeung  Chu  Keng,  140  Fed.  748;  Leung  Jun  v.  United 
States,  171  Fed.  413. 

87United  States  v.  Yeung  Chu  Keng,  supra. 

88Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

S9Ex  parte  Loung  June,  160  Fed.  251,  but  cf.  Leung  Jun  v.  United 
States,  171  Fed.  413,  contra. 

Q0Ex  parte  Lung  Foot,  174  Fed.  70. 


636  The  Exclusion  and  Expulsion  of  Aliens. 

son  has  been  adjudged  to  have  the  right  to  remain  evi- 
dence of  the  adjudication;  nor  does  it  constitute  the  cer- 
tificate of  residence  required  by  the  Act  of  November  3, 
1893.91  The  judgment  of  a commissioner  in  deportation 
proceedings  not  rendered  on  the  merits  is  not  the  equiva- 
lent of  a certificate  ;92  and  a certificate  issued  by  him  stat- 
ing that  a Chinese  person  is  a United  States  citizen  is  not 
legal  evidence  of  the  facts  on  which  it  is  based,93  but  the 
judgment  of  deportation  rendered  by  a United  States 
commissioner  is  proper  evidence  to  go  before  the  grand 
jury  on  which  to  sustain  an  indictment  of  criminality  for 
assisting  into  the  United  States  Chinese  persons  who  had 
no  right  to  be  there.94 

(e.)  Order  of  Deportation,  Sufficiency  of. 

It  is  enough  if  the  order  shows  that  the  person  to  be 
deported  has  been  adjudged  to  be  unlawfully  in  the 
United  States,  without  a finding  stating  whence  he 
came,  as  the  specification  of  the  country  to  which  he 
is  to  be  deported  concludes  any  inquiry  on  that  point; 
nor  need  the  order  of  deportation  specifically  refer  to 
the  act  of  Congress  under  which  defendant  is  held  to 
be  unlawfully  in  the  United  States.95  If,  in  addition 
to  the  order,  the  commissioner  further  directs  that  the 
alien  be  taken  to  a United  States  judge  for  a review 
of  the  proceedings  and  that  “proper  order  of  deporta- 
tion be  made/’  this  instruction  being  unnecessary,  will  be 
treated  as  surplusage.96  Where  the  district  court  finds 
that  the  accused  is  a Chinese  laborer  and  is  a subject  of 
the  Emperor  of  China,  not  registered,  and  not  a member 
of  the  exempt  class,  these  facts,  stated  in  the  order,  are 

9iAh  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619. 

92j %x  parte  Loung  June,  160  Fed.  251. 

93 Ex  parte  Lung  Wing  Wun,  161  Fed.  211. 

94United  States  v.  Hills,  124  Fed.  831. 

95 in  re  Tsu  Tse  Mee,  81  Fed.  562. 

96 in  re  Wong  Fok,  81  Fed.  558. 


Deportation  Procedure. 


637 


sufficient  to  warrant  deportation  thereon,97  and  the  same 
result  follows  when  in  proceedings  against  a Chinese  per- 
son on  the  charge  of  “being  unlawfully  in  the  United 
States”  the  court  finds  that  he  entered  unlawfully  and  was 
therefore  unlawfully  in  this  country.98  Where  the  court’s 
order  of  deportation  is  impossible  of  execution  it  will  be 
vacated  by  the  court.99  The  Chinese  exclusion  acts  do  not 
give  a commissioner  the  right  to  file  separate  findings 
which  do  not  form  part  of  the  record  after  making  and 
filing  the  certified  transcript  of  the  record  before  him — 
and  such  findings  can  serve  as  no  basis  for  the  deportation 
of  the  appellant  in  the  case.100 

( f . ) Appeals. 

(1.)  To  the  District  Court. 

(a.)  Nature  of,  in  general. 

Section  13  of  the  Act  of  September  13,  1888,  provides 
that  any  Chinese  person  or  persons  of  Chinese  descent 
“convicted  before  a commissioner  of  a United  States 
court  may,  within  ten  days  from  such  conviction,  ap- 
peal to  the  judge  of  the  district  court.”  Section  6 
of  the  Act  of  May  5,  1892,  as  amended  by  the  Act 
of  November  3,  1893,  provides  for  the  arrest  of  Chinese 
persons  found  in  the  United  States  without  the  certificate 
of  residence  required  by  the  act  before  a United  States 
judge.  The  term  “United  States  judge”  as  used  in  this 
act  has  been  held  to  include  a United  States  commissioner.1 
The  Act  of  September  13,  1888,  which  was  passed  in  con- 
templation of  the  ratification  of  a pending  treaty  with 
China  that  was  never  ratified,  was  held  none  the  less, 
with  regard  to  those  sections  thereof,  including  section  13, 
which  were  not  dependent  for  their  enforcement  on  the 

97Lee  Won  Jeong  v.  United  States,  145  Fed.  512. 

98In  re  Gut  Lun,  83  Fed.  141. 

99United  States  v.  Ah  Toy,  47  Fed.  305. 

i°°Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

1Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  L.  Ed.  1121 ; Fong 
Mey  Yuk,  113  Fed.  898. 


638  The  Exclusion  and  Expulsion  of  Aliens. 


ratification  of  the  treaty,  to  have  gone  in  force  on  the 
passage  of  the  act  and  to  have  remained  in  force  ever 
since.2  The  acts  of  April  29,  1902,  and  April  27,  1904, 
expressly  re-enacted,  extended,  and  continued  these  sec- 
tions, including  section  13. 

The  “appeal”  allowed  by  section  13  of  the  Act  of  Sep- 
tember 13, 1888,  amounts  to  the  granting  of  a trial  de  novo 
in  the  district  court,  where  the  defendant  may  again  in- 
troduce the  witnesses  heard  before  the  United  States  com- 
missioner and  present  such  additional  evidence,  docu- 
mentary or  testimonial,  as  he  pleases.3  If  the  appeal  is 
not  taken  within  the  time  specified  by  the  act,  viz.,  ten 
days,  it  will  be  regarded  as  abandoned.4 

It  has  been  held  that  the  right  of  appeal  granted  by 
section  13  of  the  Act  of  1888  is  for  the  benefit  of  the  alien 
alone  and  does  not  extend  to  the  Government.5  A question 
has  been  raised,  however,  as  to  whether  section  25  of  the 
new  Judicial  Code,  effective  January  1,  19126  reading: 
“The  district  courts  shall  have  appellate  jurisdiction  of 
the  judgments  and  orders  of  United  States  commissioners 
in  cases  arising  under  the  Chinese  exclusion  laws,”  does 
not  effect  a change  in  this  situation,  and  not  only  allow 
the  Government  as  well  as  the  alien  the  right  of  appeal 
from  the  commissioner’s  decision,  but  also  require  that  the 
case  appealed  shall  be  heard  in  the  district  court  on  the 
record  formed  below.  Taking  the  language  of  the  section 
in  its  ordinary  meaning,  it  is  at  least  open  to  such  a con- 
struction, especially  as  it  must  be  regarded  as  having  been 
enacted  with  knowledge  by  the  legislators  of  the  holdings 
of  the  courts  under  the  previously  existing  law.  But  ex- 
amination of  the  committee  report  with  which  the  new 
Judicial  Code  was  submitted  to  Congress7  shows  quite 

2p.  637,  infra . 

3Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  E<^  888. 

^United  States  v.  Yuen  Yee  Sum,  153  Fed.  494. 

^United  States  v.  Mar  Ying  Yuen,  123  Fed.  159. 

636  Stat.  L.  1087,  1094. 

^Report  No.  388,  Part  1,  Calendar  No.  372,  61st  Cong.,  2d  Sess. 


Deportation  Procedure. 


639 


clearly,  it  is  thought,  that  there  was  no  intent  to  change 
the  existing  law  in  this  respect.  The  committee  said: 
“This  section  merely  states,  in  concise  terms,  the  jurisdic- 
tion now  vested  in  the  district  and  circuit  courts  to  review 
the  orders  of  United  States  commissioners  in  Chinese  de- 
portation cases.” 

The  right  of  appeal  enjoyed  under  section  13  of  the  Act 
of  1888  was  not  taken  away  by  the  Act  of  May  5,  1892,  as 
amended  by  that  of  November  3,  1893,  which  did  not  in- 
clude any  specific  provision  as  to  appeal  ;8  nor  did  the  fact 
that  the  proposed  treaty  with  China  of  1888  was  not  rati- 
fied affect  the  right  of  appeal  of  those  proceeded  against 
for  deportation  under  this  section.9 

Proceedings  under  this  section,  although  before  a United 
States  commissioner,  who  is  a quasi- judicial  officer,  and  on 
appeal  to  the  district  court  and  the  circuit  court  of  ap- 
peals, are  none  the  less  proceedings  sui  generis  of  an  anom- 
alous and  summary  character,10  and  as  has  already  been 
stated,  constitute  merely  a method  for  the  removal  from 
the  United  States  of  aliens  who  are  not  lawfully  here. 
They  do  not  constitute  “causes”  as  the  word  is  used  in  the 
Revised  Statutes  of  the  United  States,11  nor  are  they  crim- 
inal proceedings.  There  is,  therefore,  no  right  to  a jury 
trial,  even  on  appeal  to  the  district  court.12  Owing  to  the 
nature  of  the  proceedings,  it  has  been  held  that  it  is  not 
error  on  the  part  of  the  district  court  to  have  an  alien  who 
has  been  brought  before  it  on  deportation  proceedings  tes- 
tify without  taking  oath  to  facts  whereby  the  establish- 
ment of  his  United  States  citizenship  is  sought  to  be 
proven  ;13  but  the  deportation  of  a Chinese  person  lawfully 
admitted  into  the  United  States  on  a student’s  certificate 
cannot  be  ordered  by  the  district  court  on  a transcript  of 

©United  States  v.  Wong  Dep  Ken,  57  Fed.  203. 

©United  States  v.  Jim,  47  Fed.  431. 
loChow  Toy  v.  United  States,  112  Fed.  354. 
uToy  Tong  v.  United  States,  146  Fed.  343. 
izUnited  States  v.  Ngum  Lum  May,  153  Fed.  209. 

!3Lee  Yuen  Sue  v.  United  States,  146  Fed.  670. 


640  The  Exclusion  and  Expulsion  of  Aliens. 

the  proceedings  before  a commissioner  not  containing 
findings,  or  where  separate  findings  of  the  commissioner 
were  introduced  without  an  order  of  the  court.14  The 
jurisdiction  of  the  district  court  on  appeal  taken  from  an 
order  of  deportation  issued  by  the  United  States  commis- 
sioner is  not  ousted,  where  the  parties  are  before  the  court, 
by  objections  to  the  validity  of  the  arrest;15  nor  does  the 
district  court  lose  its  jurisdiction  in  deportation  proceed- 
ings because  of  the  failure  on  the  part  of  the  United  States 
commissioner  to  certify  his  judgment  to  the  court.16  The 
jurisdiction  of  the  district  judge  is  limited  to  appeals  from 
his  own  district,  and  he  cannot  therefore  allow  an  appeal 
from  another  district.17  It  has  been  held  that  a district 
court  has  no  power  to  direct  the  issue  of  a dedimus  potes- 
tatem  to  take  testimony  for  use  in  deportation  proceed- 
ings;18 but  the  soundness  of  this  case  may  be  seriously 
doubted,  as  it  has  been  held  in  a later  decision  rendered, 
(unlike  the  earlier)  after  the  principle  had  been  generally 
recognized  that  deportation  proceedings  are  civil  in  nature, 
that  depositions  de  bene  esse  may  be  used  in  such  proceed- 
ings, such  right  being  conferred  by  section  863,  Revised 
Statutes,19  and  the  right  to  issue  the  dedimus  being  a nec- 
essary incident  to  the  taking  and  introduction  of  the  depo- 
sitions.20 As  a matter  of  fact,  the  practice  has  now  become 
quite  common  to  use  a dedimus  potestatem  in  these  pro- 
ceedings. The  term  “United  States  judge,”  within  the 
meaning  of  the  exclusion  acts,  includes  the  justices  of  the 
Supreme  Court  of  the  ^District  of  Columbia.21 

(b.  ) j How  Taken. 

The  appeal  allowed  by  section  13  of  the  Act  of 

i4Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

i5Toy  Tong  v.  United  States,  146  Fed.  343. 

isUnited  States  v.  Wong  Ock  Hong,  179  Fed.  1004. 

i7United  States  v.  Moy  Yee  Tai,  109  Fed.  1. 

isUnited  States  v.  Horn  Hing,  48  Fed.  635. 

i9U.  S.  Comp.  Stat.,  1901,  p.  661. 

20 in  re  Lam  Jung  Sing,  150  Fed.  608. 

219  Appeals  D.  C.  290. 


Deportation  Procedure. 


641 


September  13,  1888,  “to  the  judge  of  the  district 
court,”  is  an  appeal  to  the  district  court  and  not  to  the 
judge  as  an  individual.22  The  district  judge  must  direct 
his  order  to  be  entered  by  the  clerk  of  the  court,23  and  the 
district  court  acquires  no  jurisdiction  unless  the  appeal  is 
taken  within  ten  days  from  the  conviction.24  It  is  a special 
privilege,  and  the  statute  conferring  it  must  be  strictly 
construed.25  And  if  the  appellant  fails  to  enter  and  file 
the  transcript  on  or  before  the  day  of  citation,  as  required 
by  the  rules  of  the  circuit  court  of  appeals,  the  appellee  is 
entitled  on  petition  to  have  the  case  docketed  and  dis- 
missed.26 No  formal  method  of  taking  the  appeal  is  pre- 
scribed by  the  statute,  except  the  provision  setting  out  the 
period  in  which  the  appeal  must  be  taken;  thus  an  order 
allowing  the  appeal  from  the  United  States  commissioner 
is  unnecessary  and,  if  allowed,  does  not  affect  the  validity 
thereof.27  If  oral  notice  of  appeal  is  given  the  commis- 
sioner within  the  statutory  period  it  is  sufficient;  but 
the  mere  appearance  of  an  attorney  giving  notice  of  an  ap- 
peal does  not  constitute  an  appeal.28  An  appeal  lies  not 
only  from  an  order  of  deportation  by  the  commissioner,  or 
from  the  judgment  of  the  district  court  affirming  such 
order,  but  as  well  from  a refusal  to  grant  a motion  for  a 
new  trial,29  as  the  commissioner,  not  the  district  court,  is 
the  person  to  whom  the  motion  should  be  presented  should 
the  defendant  choose  to  avail  himself  of  this  mode  of 
procedure ; but  the  application  must  be  submitted  promptly 
or  any  apparently  undue  delay  explained.30 

22The  United  States,  Petitioner,  194  U.  S.  194,  48  Law  Ed.  $31;  United 
States  v.  Hung  Chang,  130  Fed.  439. 

23United  States  v.  Hung  Chang,  supra. 

s^United  States  v.  Yuen  Yee  Sum,  153  Fed.  494. 

25United  States  v.  See  Ho  How,  100  Fed.  730. 

2«Wong  Sang  v.  United  States,  144  Fed.  968. 

27United  States  v.  Loy  Too,  147  Fed.  750;  Chow  Loy  v.  United  States, 
112  Fed.  354. 

28 In  re  Loy,  110  Fed.  952. 

29United  States  v.  Ng  Young,  126  Fed.  425. 

soUnited  States  v.  Ng  Young,  126  Fed.  425. 


642  The  Exclusion  and  Expulsion  of  Aliens. 


(e.)  Notice  of  Appeal 

Consists  of  notice  given  to  the  commissioner  orally 
within  ten  days  and  entered  of  record.  When  so 
given  it  is  not  necessary  that  the  matter  shall  be 
presented  to  the  judge  within  the  ten  days  to  preserve  ap- 
pellant’s right  to  a hearing  on  review.31  In  the  absence  of 
a rule  of  court  requiring  it,  an  order  of  the  judge  allowing 
the  appeal  is  unnecessary,  the  service  of  a notice  of  appeal 
on  the  commissioner  and  district  attorney  and  the  filing  of 
such  notice  with  the  clerk  being  sufficient.32  But  an  order 
of  the  judge  is  necessary  to  stay  the  execution  of  the  com- 
missioner’s order  pending  appeal,33  and  the  fact  that  no- 
tice of  appeal  is  entitled  in  the  district  court  instead  of 
before  the  commissioner,  does  not  affect  its  sufficiency.34 

(d.)  Effect  of . 

The  effect  of  an  appeal  taken  from  the  United  States 
commissioner  is  to  create  an  opportunity  for  a hearing  de 
novo  on  all  the  facts35  and  cannot  be  made  on  a transcript 
of  proceedings  before  the  United  States  commissioner,36 
and  the  defendant  cannot  be  lawfully  ordered  deported 
until  after  such  hearing  has  been  had,37  and  the  court 
itself  must  determine  whether  or  not  the  evidence  is 
satisfactory.38  The  judgment  of  the  commissioner  is  not 
vacated,  but  is  merely  suspended,  together  with  all  pro- 
ceedings thereunder,  until  the  case  is  dismissed.  And  in 
case  an  appeal  is  taken  to  a higher  tribunal  the  original 

siChow  Loy  v.  United  States,  112  Fed.  354. 

32  Ibid. 

33United  States  v.  Loo  Toy,  147  Fed.  750,  affirmed  in  152 'Fed.  1022. 

34XJnited  States  v.  Wong  Ock  Hong,  179  Fed.  1004. 

35Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888;  United 
States  v.  Louie  Lee,  184  Fed.  651. 

36United  States  v.  Wong  Ock  Hong,  179  Fed.  1004. 

37Liu  Hop  Fong  v.  United  States,  209  U.  S.  453,  52  Law  Ed.  888. 

38Quong  Sue  v.  United  States,  116  Fed.  316. 


Deportation  Procedure. 


643 


judgment  stands  in  suspense  until  the  appellate  court,  by 
a judgment  of  its  own,  shall  supersede  it.39  Thus  the  appli- 
cant cannot  be  deported  until  after  determination  of  the 
appeal;40  but  on  appeal  an  order  of  the  judge  is  necessary 
to  stay  execution  of  the  commissioner’s  order  of  deporta- 
tion.41 And  on  appeal  from  an  order  in  habeas  corpus  pro- 
ceedings discharging  the  petitioner,  but  requiring  him  to 
give  bail  for  his  appearance,  as  may  be  determined  by  any 
final  order  made  on  appeal,  the  portion  of  the  order  ad- 
mitting appellee  to  bail  will  not  be  taken  up  for  consider- 
ation on  a motion  in  advance  of  the  regular  hearing  un- 
less for  special  reasons.42 

(e.)  Abandonment  of . 

An  appeal  may  be  deemed  abandoned  when  not  taken 
within  the  period  prescribed  by  statute.  Thus  when  the 
judgment  of  the  commissioner  was  rendered  on  May  24, 
and  notice  of  appeal  given  on  July  11,  and  the  attention 
of  the  judge  of  the  district  court  not  called  thereto  until 
the  last  week  in  July,  the  appeal  was  held  abandoned  and 
the  dismissal  thereof  proper.43 

2.  To  the  Circuit  Court  of  Appeals. 

By  the  terms  of  the  Evarts  Act44  an  appeal  lies  to 
the  circuit  court  of  appeals  from  a decision  rendered 
by  a district  court  of  the  United  States  in  certain 
specified  classes  of  cases,  and  it  is  under  the  terms 
of  this  general  provision  that  appeals  are  taken  from 
decisions  rendered  in  Chinese  deportation  proceedings 
by  District  Courts,  either  as  the  result  of  the  suing 
out  of  a writ  of  habeas  corpus,  or  of  a warrant  of 
arrest  having  been  secured  in  the  first  instance  from  the 

3922  Op.  Atty.  Gen.  340. 

4»United  States  v.  Louie  Lee,  184  Fed.  651. 

4iUnited  States  v.  Loo  Toy,  147  Fed.  750,  affirmed  in  152  Fed.  1022. 

42United  States  v.  Yee  Yen  Tai  et  al.,  108  Fed.  950. 

*3 Chow  Loy  v.  United  States,  112  Fed.  354. 

4426  Stat.  L.  828,  Sec.  4;  Comp.  Stat.  1901. 


644  The  Exclusion  and  Expulsion  of  Aliens. 


district  judge,  or  of  the  “appeal”  of  the  case  to  the  district 
court  from  a decision  of  a United  States  commissioner  or- 
dering deportation.  Cases  arising  under  the  general  im- 
migration law  which  are  taken  into  the  courts  by  writ  of 
habeas  corpus,  sued  out  either  after  a hearing  before  a 
board  of  special  inquiry45  or  a hearing  before  an  officer  or 
officers  designated  by  the  Secretary  of  Commerce  and 
Labor  in  a warrant  of  arrest,46  are  appealed  in  the  same 
manner  as  cases  arising  under  the  Chinese  exclusion  laws; 
so  that  most  of  what  is  said  under  this  and  the  next  sub- 
division is  equally  applicable  to  immigration  cases,  al- 
though naturally  the  majority  of  the  cited  decisions  deal- 
ing with  deportation  are  Chinese  cases. 

It  was  held  in  a recent  decision  of  a circuit  court 
of  appeals  that  the  appeal  allowed  by  section  13  of 
the  Act  of  1888  is  not  limited  to  a right  to  appeal 
from  a commissioner’s  or  a district  court’s  decision, 
but  includes  a further  right  to  appeal  from  either  a 
district  or  a circuit  court  of  appeals’  decision.47  The 
leading  decision  on  this  subject  was  rendered  in  1904, 
and  is  to  the  effect  that,  under  section  6 of  the  Evarts 
Act  of  March  3,  1891, 48  an  appeal  lies  to  the  circuit 
court  of  appeals  from  a judgment  of  a district  court 
rendered  on  an  appeal  from  an  order  of  a commis- 
sioner for  the  deportation  of  a Chinese  person  arrested 
under  section  13  of  the  Act  of  September  13,  1888.49  But 
it  has  been  held  that  the  circuit  court  of  appeals  has  not 
jurisdiction  of  a writ  of  error  to  an  order  of  a judge  for 
the  deportation  of  a Chinese  person,  where  no  final  order 
or  judgment  was  entered  in  the  district  court,  and  the  bill 
of  exceptions  allowed  was  not  there  filed,  and  the  tran- 

45See  p.  621,  infra. 

46See  p.  627,  infra. 

47Gee  Cue  Beng  v.  United  States,  184  Fed.  383. 

4826  Stat.  L.  828;  U.  S.  Comp.  Stat.,  1901,  p.  549. 

49Tsoi  Yii  v.  United  States,  129  Fed.  585;  see  also  United  States  v. 
Hung  Chang,  134  Fed.  19;  and  United  States,  Petitioner,  194  U.  S.  194, 
48  Law  Ed.  931;  United  States  v.  Gee  Lee,  50  Fed.  271. 


Deportation  Procedure. 


645 


script  was  certified  by  the  district  judge  instead  of  by  the 
clerk;50  however,  it  was  suggested  by  the  circuit  court  of 
appeals  that  the  district  court  had  not  lost  jurisdiction  by 
reason  of  this  irregular  procedure  and  should  enter  the 
order  and  direct  the  filing  of  the  bill  of  exceptions.51  That 
a writ  of  error  designates  the  parties  as  plaintiff  and  de- 
fendant, following  the  title  of  the  cause  in  the  court  be- 
low, is  not  a fatal  error;  nor  does  it  affect  the  right  to 
prosecute  the  proceedings  for  review,  but  it  will  be  re- 
garded as  a clerical  mistake  only.52 

If  it  is  desired  that  the  circuit  court  of  appeals  shall  re- 
view a decision  of  a district  court,  such  review  must  be 
sought  by  way  of  appeal,53  and  a writ  of  error  from  the 
circuit  court  of  appeals  to  the  district  court  which  decided 
the  case  on  appeal  from  the  commissioner  will  not  be 
granted.54  The  distinction  between  a writ  of  error  and 
an  appeal  being  jurisdictional,  it  canot  be  waived  by  the 
parties  or  disregarded  by  the  court.55  In  a later  case  it 
was  held  that  findings  of  a district  court  adverse  to  the 
right  of  a Chinese  person  to  remain  in  the  United  States, 
on  the  claim  of  citizenship,  cannot  be  reviewed  on  a writ 
of  error  where  the  evidence  was  not  made  a part  of  the 
record  by  a bill  of  exceptions.56 

Although  the  Act  of  September  13,  1888,  prescribes  no 
set  form  of  procedure  governing  the  method  of  taking  ap- 
peals, where  irregularities  in  the  court  below  are  claimed 
for  the  first  time  in  the  circuit  court  of  appeals,  they  are 
deemed  to  be  waived  by  failure  to  object  in  the  lower 
court.57 

soUnited  States  v.  Hung  Chang,  130  Fed.  439. 

51IMd. 

52H.  Hackfeld  & Co.  v.  United  States,  141  Fed.  9;  see  also  Mussina  r. 
Groazos,  6 Wall.  355,  361. 

53United  States  v.  Hung  Chang,  134  Fed.  19. 

54Lee  Lung  On  v.  United  States,  159  Fed.  125. 

65Lee  Lung  On  v.  United  States,  159  Fed.  125. 

seLew  Moy  v.  United  States,  164  Fed.  322. 

57United  States  v.  Lee  Seick,  100  Fed.  398. 


646  The  Exclusion  and  Expulsion  op  Aliens. 

The  fact  that  constitutional  questions  are  involved  in 
an  appeal  to  the  circuit  court  of  appeals  from  a district 
or  circuit  court  does  not  deprive  the  former  of  jurisdic- 
tion to  sustain  the  appeal  when  other  and  additional 
questions  are  involved  and  determined  therein.58  It  is 
provided  by  the  Evarts  Act59  that  “No  appeal  or  writ  of 
error  by  which  any  order,  judgment  or  decree  may  be  re- 
viewed in  the  Circuit  Court  of  Appeals  under  the  pro- 
visions of  this  act  shall  be  taken  or  sued  out  except  within 
six  months  after  the  entry  of  the  order,  judgment  or  decree 
sought  to  be  reviewed:  Provided , however , That  in  all 
cases  in  which  a lesser  time  is  now  by  law  limited  for  ap- 
peals or  writs  of  error,  such  limits  of  time  shall  apply  to 
appeals  or  writs  of  error  in  such  cases  taken  to  or  sued 
out  from  the  Circuit  Court  of  Appeals.” 

3.  To  the  Supreme  Court  of  the  United  States. 

Cases  arising  in  the  courts  under  the  Chinese  exclusion 
treaty  and  laws  and  the  immigration  law  reach  the  Su- 
preme Court  of  the  United  States  in  one  of  three  ways : 

(a.)  By  appeal  from  a district  or  circuit  court  direct 
to  the  Supreme  Court,  in  which  method,  under  the  Evarts 
Act  as  amended,60  cases  of  the  following  description  aris- 
ing out  of  the  laws  here  discussed  may  be  taken  to  the 
Supreme  Court  for  review:  (1)  Those  in  which  the  juris- 
diction alone  is  certified  from  the  court  below;  (2)  Those 
involving  the  construction  or  application  of  the  Constitu- 
tion of  the  United  States;  (3)  Cases  in  which  the  constitu- 
tionality of  any  law  of  the  United  States  or  the  validity  or 
construction  of  any  treaty  made  under  its  authority  is 
drawn  in  question. 

No  appeal  lies  until  final  judgment  has  been  rendered 
in  the  lower  court.61  Where  a constitutional  question  is 

58 In  re  Can  Pon,  et  ah,  168  Fed.  479,  and  cases  therein  cited;  Spreckles 
Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397,  407,  48  Law  Ed.  496. 

5926  Stat.  L.  829;  Comp.  Stat.,  1901. 

6026  Stat.  L.  827 ; Comp.  Stat.,  1901. 

ciMcLish  v.  Roff,  141  U.  S.  661,  35  Law  Ed.  893. 


Deportation  Procedure. 


647 


raised  the  Supreme  Court  will  review  all  questions  in- 
volved in  the  case,  not  merely  the  constitutional  one.62 
When  a constitutional  question  has  been  settled  by  a 
unanimous  decision  of  the  Supreme  Court,  it  cannot  be 
the  subject  of  another  appeal.63  If  an  appeal  is  taken  to 
and  argued  in  the  circuit  court  of  appeals,  which  has  jur- 
isdiction on  other  grounds,  in  a case  in  which  constitu- 
tional questions  are  involved,  the  right  to  an  immediate 
appeal  to  the  Supreme  Court  will  be  considered  waived.64 
The  construction  or  application  of  the  Constitution  of  the 
United  States  is  involved  in  the  question  whether  De- 
partmental regulations  may  constitutionally  have  the 
force  of  law.65 

No  appeal  to  the  Supreme  Court  from  a circuit  or  dis- 
trict court  will  be  allowed  unless  taken  within  two  years 
from  the  date  of  such  lower  court  decision.66 

( b. ) By  certification  from  the  circuit  court  of  appeals. 

Under  the  Evarts  Act67  the  circuit  court  of  appeals  may, 
with  respect  to  every  subject  within  its  appellate  jurisdic- 
tion, certify  to  the  Supreme  Court  at  any  time  any  ques- 
tions or  propositions  of  law  covering  which  it  desires  the 
instruction  of  that  court  for  its  proper  decision ; and  there- 
upon the  Supreme  Court  may  either  give  the  requested 
instruction,  or  may  require  the  entire  case  to  be  sent  up 
and  decide  it  in  the  same  manner  as  though  it  had  come 

62Ekiu  v.  United  States,  142  U.  S.  651,  35  Law  Ed.  1146;  Horner  v. 
United  States,  No.  2,  143  U.  S.  570,  36  Law  Ed.  266;  Carey  v.  Houston  & 
T.  C.  R.  Co.,  150  U.  S.  170,  37  Law  Ed.  1041 ; Penn  Mutual  L.  Ins.  Co.  v. 
Austin,  168  U.  S.  685,  42  Law  Ed.  626.  . 

esSloan  v.  United  States,  193  U.  S.  614,  48  Law  Ed.  814;  Farrell  v. 
O ’Brien,  199  U.  S.  89,  50  Law  Ed.  101 ; Harris  v.  Rosenberger,  145  Fed.  449. 

64Carter  v.  Roberts,  177  U.  S.  496,  44  Law  Ed.  861;  Am.  Sugar  Refin. 
Co.  v.  New  Orleans,  181  U.  S.  277,  45  Law  Ed.  859;  Cary  Mfg.  Co.  v. 
Acme  Flex.  Clasp  Co.,  187  U.  S.  427,  47  Law  Ed.  244;  Ayres  v.  Polsdorfer, 
187  U.  S.  585,  47  Law  Ed.  $14 ; McKenzie  v.  Pease,  146  Fed.  743. 

esBoske  v.  Comingore,  177  U.  S.  459;  44  Law  Ed.  846. 

66U.  S.  R.  S.,  Sec.  1008 ; Allen  v.  So.  Pac.  R.  Co.,  173  U.  S.  479,  43  Law 
Ed.  775;  Holt  v.  Indiana  Mfg.  Co.?  176  U.  S.  68,  44  Law  Ed.  374. 

6726  Stat.  L.  828, 


648  The  Exclusion  and  Expulsion  of  Aliens. 

up  by  appeal  or  writ  of  error.  Where  a judgment  of  the 
circuit  court  of  appeals  involves  the  effect  of  the  Chinese 
exclusion  acts  on  Chinese  merchants  domiciled  in  this 
country  who  temporarily  leave  it  animo  revertendi,  and 
also  the  effect  of  our  treaties  with  China,  the  question  is 
a proper  one  to  be  certified  to  the  Supreme  Court  for  in- 
structions.68 A good  illustration  of  this  method  consists 
of  the  case  of  United  States  v.  Ju  Toy,69  especially  because 
of  the  clearness  with  which  the  questions  are  stated;  it 
being  required  that  questions  certified  shall  each  consist 
of  a single  question  of  law70  and  that  they  must  not  be 
questions  of  mixed  law  or  fact.71  A jurisdictional  ques- 
tion,72 and  one  in  which  is  involved  the  construction  or  ap- 
plication of  the  Constitution73  may  be  so  certified  where 
the  circuit  court  of  appeals  has  jurisdiction  of  the  case. 

(c.)  By  writ  of  certiorari 

from  the  Supreme  Court,  directed  to  the  circuit  court  of 
appeals.  In  any  case  in  which  the  decision  of  a circuit 
court  of  appeals  is  final,  the  Supreme  Court  may  require, 
“by  certiorari  or  otherwise/’  any  such  case  to  be  certified 
to  it  “for  its  review  and  determination,  with  the  same 
power  and  authority  in  the  case  as  if  it  had  been  carried 
by  appeal  or  writ  of  error  to  the  Supreme  Court,”74  and 
similar  power  exists  to  review  the  decisions  of  the  court 
of  appeals  of  the  District  of  Columbia.75  The  Supreme 
Court  will  issue  a certiorari,  under  the  provisions 
above  described,  where  grave  or  important  questions 
are  involved,  or  in  the  interest  of  uniformity  of  de- 

68  Ex  parte  Lau  Ow  Bew,  141  U.  S.  583,  589,  35  Law  Ed.  868. 

69198  U.  S.  253,  49  Law  Ed.  1040. 

roMcHenry  v.  Alford,  168  U.  S.  651,  42  Law  Ed.  614. 

7iWarner  v.  New  Orleans,  167  U.  S.  467,  42  Law  Ed.  239. 

72United  States  v.  Jahn,  155  U.  S.  109,  39  Law  Ed.  87;  McLish  v.  Roff, 
141  U.  S.  661,  668,  35  Law  Ed.  893. 

73Am.  Sugar  Refin.  Co.  v.  New  Orleans,  181  U.  fe.  277,  45  Law  Ed.  859. 

7426  Stat.  L.,  828. 

7529  Stat.  L.  692;  D.  C.  Code,  Sec.  234;  31  Stat.  L.  1189;  Sinclair  v. 
D.  C.  192  U.  S.  16,  21,  48  Law  Ed.  322. 


Deportation  Procedure. 


649 


cision;76  and  where  the  judgment  of  a circuit  court 
of  appeals  in  a habeas  corpus  case  involves  the  effect 
of  the  Chinese  exclusion  acts  on  the  question  of  domicile 
of  Chinese  merchants  in  this  country,  and  also  the  effect 
of  the  treaty  with  China.77  Usually  it  will  be  issued 
where  questions  of  international  importance  are  in- 
volved ;78  and  where  there  is  a difference  of  opinion  between 
different  circuit  courts  of  appeal.79  The  Supreme  Court 
cannot  issue  a certiorari  when  it  has  appellate  jurisdiction 
to  review  the  case  by  appeal  or  writ  of  error,80  and  the 
certiorari  may  be  issued  whether  or  not  the  advice 
of  the  Supreme  Court  is  sought,81  whereupon  the  court  will 
decide  the  whole  matter  in  controversy.82 

No  appeal  lies  to  the  Supreme  Court  from  a decision 
by  a circuit  court  of  appeals  regarding  an  application 
for  the  writ  of  habeas  corpus,  for  such  a matter  cannot 
be  “measured  in  money.”83 

No  application  to  review  a decision  of  a circuit  court 
of  appeals  by  writ  of  certiorari  will  be  allowed  by  the  Su- 
preme Court  unless  made  within  one  year  of  the  entry  of 
the  order,  judgment,  or  decree  sought  to  be  reviewed.84 

Questions  frequently  arise  under  the  Evarts  Act  as  to 
whether  a case  decided  in  a circuit  court  should  be  taken 
taken  for  review  to  the  Supreme  Court  direct  or  to  the 
circuit  court  of  appeals.  If  the  sole  ground  of  Federal 
jurisdiction  is  that  there  is  a controversy  arising  under 
the  United  States  Constitution,  the  Supreme  Court  has  ap- 
pellate jurisdiction  exclusive  of  the  circuit  court  of  ap- 

76 In  re  Woods,  143  U.  S.  202,  206,  36  Law  Ed.  125. 

77 Ex  parte  Lau  Ow  Bew,  141  U.  S.  583,  35  Law  Ed.  868;  Lau  Ow  Bew 
v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340. 

78E&  parte  Lau  Ow  Bew,  141  U.  S.  583,  35  Law  Ed.  868;  United  States 
v.  The  Three  Friends,  166  U.  S.  1,  41  Law  Ed.  897. 

79Columbus  Watch  Co.  v.  Robbins,  148  U.  S.  266,  37  Law  Ed.  445. 

s°Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340. 

si  Ibid. 

82Loewe  v.  Lawler,  208  U.  S.  274,  52  Law  Ed.  488. 

83Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  36  Law  Ed.  340. 

8428  Stat.  L.  828;  The  Conquerer,  166  U.  S.  110,  41  Law  Ed.  937. 


G50  The  Exclusion  and  Expulsion  of  Aliens. 

peals,85  although  other  questions  may  be  involved.80  In 
cases  of  this  nature  usually  the  Supreme  Court  will  re- 
verse the  decree  without  passing  upon  the  merits.87 

3.  Reversal  of  Findings  on  Appeal. 

As  a general  rule  the  decision  of  a commissioner  or 
lower  court  will  not  be  reversed  on  questions  of  fact 
unless  shown  to  be  clearly  contrary  to  the  evidence 
submitted.88  Thus  a circuit  court  of  appeals  will  not 
reverse  findings  made  below  when  the  United  States 
commissioner’s  order  of  deportation  has  been  affirmed 
by  a district  court,  unless  the  findings  of  that  court 
show  clearly  that  the  affirming  decision  was  incor- 
rect,89 as,  for  instance,  where  it  appears  that  the  evi- 
dence given  before  the  commissioner  was  candid  and  con- 
sistent and  the  witnesses  giving  it  were  unimpeached.90 
The  question  of  fact  whether  or  not  a Chinese  person  is 
lawfully  in  the  United  States  will  not  be  re-examined  by 
the  Supreme  Court  when  such  question  has  been  decided 
adversely  to  the  alien  by  the  commissioner,  whose  finding 
has  been  affirmed  by  the  district  court,  merely  because  the 
construction  of  a treaty  with  China  is  drawn  in  question — 
a fact  which  ordinarily  is  regarded  as  giving  the  Supreme 
Court  jurisdiction  to  dispose  of  all  questions  arising  in 
such  a case.91  Nor  will  a commissioner’s  decision  order- 
ing deportation  be  disturbed  on  appeal  unless  it  is  so 
clearly  against  the  weight  of  evidence  as  to  justify  a cir- 

85Am.  Sugar  Refin.  Co.  v.  New  Orleans,  181  U.  S.  277,  281,  45  Law  Ed. 
859. 

ssOwensboro  v.  Owensboro  Waterworks,  115  Fed.  318;  but  see  Pikes 
Peak  Power  Co.  v.  Col.  Springs,  105  Fed.  1. 

87Union  & Planters’  Bank  v.  Memphis,  189  U.  S.  71,  74,  47  Law  Ed.  712. 

88Chin  Bak  Kan  v.  United  States,  186  U.  S.  193,  46  Law  Ed.  1121; 
Gong  Nom  Wood  v.  United  States,  191  Fed.  830. 

89Mar  Sing  v.  United  States,  137  Fed.  875;  and  see  153  Fed.  232. 

soMar  Poy  v.  United  States,  189  Fed.  288. 

piChip  Bak  Kan  v.  United  States,  supra. 


Deportation  Procedure. 


651 


cult  court  of  appeals  in  disregarding  it;92  nor  where, 
although  the  evidence  of  the  defendant  to  prove  citizen- 
ship was  not  contradicted  by  the  Government,  it  was  so 
general  as  to  afford  the  Government  no  opportunity  for  re- 
buttal.93 But  where  the  testimony  of  Chinese  witnesses 
that  a defendant  has  the  right  to  remain  in  the  United 
States  is  not  impeached,  the  court  can  determine  for  itself 
the  advisability  of  calling  for  further  evidence  as  to  the 
credibility  of  the  witnesses,  and  a failure  to  call  for  such 
evidence  does  not  constitute  error,  and  the  decision  will 
not  be  reversed  on  appeal.94  Where  the  commissioner 
finds  that  the  Chinese  person  is  lawfully  in  the  United 
States,  no  right  of  review  lies  with  the  court  in  the  ab- 
sence of  abuse  on  the  part  of  the  commissioner  ;95  but  such 
finding  will  be  reviewed  on  appeal  where  the  court  has  re- 
leased a Chinese  defendant  who  has  failed  to  prove  his 
right  to  remain  by  at  least  one  credible  white  witness.96 
Where  it  appeared  by  the  evidence  before  the  commissioner 

92Bak  Kun  v.  United  States,  Ting  Fong  v.  United  States,  195  Fed.  53; 
Wong  Heung  v.  Elliott,  179  Fed.  110;  Yee  King  v.  United  States,  179  Fed. 
368;  United  States  v.  Chu  King  Foon,  179  Fed.  995;  Hong  You  et  al.  v. 
United  States,  164  Fed.  330;  Yee  Yet  et  al.  v.  United  States,  175  Fed.  565; 
Wong  Chum  v.  United  States,  170  Fed.  182;  United  States  v.  Chung  Sun 
Fun  et  al.,  63  Fed.  261;  United  States  v.  Leung  Sam,  114  Fed.  702;  Gong 
Nom  Wood  v.  United  States,  supra;  Chu  King  Foon  v.  United  States,  191 
Fed.  822;  Fong  Gum  Tong  v.  United  States,  192  Fed.  320;  Chin  Ken  et  al. 
v.  United  States,  191  Fed.  817;  Yuen  Pak  Sune  v.  U.  S.,  191  Fed.  825;  but 
of  late  the  view  has  more  than  once  been  expressed  that,  deportation  cases 
being  civil  in  nature,  the  test  of  whether  a Chinese  person  alleging  the  right 
to  remain  because  of  his  American  citizenship  depends  on  the  preponder- 
ance of  the  evidence,  even  though  the  burden  of  proof  is  on  the  defendant 
to  show  his  exempt  status.  Wong  Jew  Dip  v.  United  States,  192  Fed.  471; 
United  States  v.  Leu  Jin,  192  Fed.  580;  and  where  the  right  to  remain  is 
based  on  a “section  6’ ’ certificate  duly  issued  by  competent  authority  the 
Commissioner’s  excluding  decision  will  be  reversed  if  based  on  evidence 
which  cannot  be  reasonably  construed  to  controvert  the  fact  of  the  de- 
fendant’s mercantile  status  as  set  forth  in  the  certificate.  United  States  v. 
Chin  Chong  Pong,  192  Fed.  722. 

9sKum  Sue  et  al.  v.  United  States,  179  Fed.  370. 

9*Woey  Ho  v.  United  States,  109  Fed.  888. 

95United  States  v.  Yeung  Chu  Keng,  140  Fed.  748. 

»6United  States  v.  Yee  Gee  You,  152  Fed.  157. 


652  The  Exclusion  and  Expulsion  of  Aliens. 


that  a Chinese  person  ordered  deported  by  him  is  a citizen 
of  the  United  States,  the  order  of  deportation  will  be  re- 
versed,97 and  the  Supreme  Court  will  reverse  a judgment 
of  deportation  by  a district  court,  when  the  record  shows 
the  Chinese  ordered  deported  under  the  Act  of  May  5, 
1892,  as  amended,  were  merchants  as  a matter  of  law  dur- 
ing the  registration  period  ;98  but  a re-examination  of  facts 
to  determine  whether  or  not  a Chinese  person  is  lawfully 
in  the  United  States,  when  the  question  has  been  decided 
adversely  to  him  by  the  United  States  commissioner  and 
the  district  court  will  not  be  entered  into  by  the  Supreme 
Court  on  the  alleged  ground  that  the  construction  of  a 
treaty  with  China  being  involved,  the  Supreme  Court  has 
authority99  to  dispose  of  the  entire  case.100  It  has  also  been 
held  that  findings  of  fact  by  a United  States  commissioner 
are  not  reviewable  by  a court  on  habeas  corpus -1  Where 
testimony  was  taken  in  the  hearing  before  the  commis- 
sioner without  objection  by  the  defendant,  and  an  appeal 
was  taken  to  the  district  court  in  which  no  objection  was 
made  to  the  commissioner’s  finding  of  facts,  such  action 
was  held  to  constitute  an  implied  assent  to  a hearing 
before  the  court  on  an  agreed  statement  of  facts.2  Where 
a Chinese  defendant’s  own  testimony  as  to  whether  he  was 
born  in  China  or  in  the  United  States  is  conflicting,  the 
finding  of  the  commissioner  adverse  to  him,  confirmed  by 
the  district  court,  will  not  be  reviewed  by  the  circuit 
court  of  appeals,3  and  a Chinese  defendant  who  made  no 
denial  of  his  nationality  and  no  claim  that  he  was  within 
the  exempted  classes  or  that  he  was  born  in  the  United 
States,  who  stated  that  he  had  no  counsel  and  did  not 

97United  States  v.  Jhu  Why,  175  Fed.  630. 

ssTom  Hong  v.  United  States,  193  U.  S.  517,  522,  48  Law  Ed.  772. 

9»Under  the  Evarts  Act,  26  Stat.  at  L.  827. 

looChin  Bak  Kan  v.  United  States,  186  U.  S.  193,  201,  46  Law  Ed.  1121. 

lUnited  States  v.  Don  On,  49  Fed.  569;  In  re  Ah  Yow,  59  Fed.  561;  and 
see  United  States  v.  Lair,  195  Fed.  47. 

2In  re  Chin  Ark  Wing,  115  Fed.  412. 

3Chu  King  Foon  v.  United  States,  191  Fed.  822. 


Deportation  Procedure. 


653 


want  one  then,  and  who  on  all  other  questions  refused  to 
answer,  and  stood  mute,  has  no  ground  of  appeal  to  the 
circuit  court  of  appeals.4  Where  a Chinese  defendant 
produced  one  witness  at  the  trial  and,  although  he  knew 
of  another,  did  not  produce  him,  he  was  not  entitled  to  a 
new  trial  to  afford  opportunity  to  produce  the  additional 
witness,  and  a district  court  refused  to  sustain  an  appeal 
from  a commissioner’s  refusal  to  grant  the  new  trial.5 

IV.  Release  Under  Bail  or  Other  Bond. 

1.  Of  Aliens  Applying  to  Enter. 

(a.)  Under  the  Immigration  Law. 

1.  For  Permanent  Purposes. 

(a.)  Under  (C public  charge ” bond. — By  section  26  of 
the  immigration  law  the  Secretary  of  Commerce  and  La- 
bor is  vested  with  discretion  to  admit  “upon  the  giving 
of  a suitable  and  proper  bond  or  undertaking”  aliens 
likely  to  become  a public  charge  or  suffering  with  “phys- 
ical” disability  other  than  tuberculosis  or  a loathsome  or 
dangerous  contagious  disease.”  Under  rule  17  of  the  im- 
migration rules6  the  application  must  be  submitted 
promptly  and  the  bond  must  be  in  the  sum  of  $500  unless 
special  instructions  to  the  contrary  are  given. 

It  has  been  held  that  the  acceptance  of  a public  charge 
bond  is  wholly  within  the  discretion  of  the  Secretary  of 
Commerce  and  Labor,  and,  therefore,  it  is  not  competent 
for  a court  to  inquire  by  writ  of  habeas  corpus  into  the 
matter.7  In  at  least  one  instance  a court  held,  even  before 
the  law  contained  any  affirmative  authority  to  accept 
public  charge  bonds,  that  a bond  taken  to  insure  the  people 
of  the  United  States  against  an  alien’s  becoming  a public 
charge  is  good  and  may  be  enforced  in  the  courts.8 

4Chin  Ban  et  al.  v.  United  States,  191  Fed.  871. 

sUnited  States  v.  Ng  Young,  126  Fed.  425. 

6Subds.  5 and  6. 

^United  States  ex  rel.  Chanin  v.  Williams,  177  Fed.  689. 

8United  States  v.  Lipkis,  56  Fed.  427. 


654  The  Exclusion  and  Expulsion  of  Aliens. 


A bond  prescribed  by  statute  must  comply  substantially 
with  the  terms  of  the  statute9  unless  sustainable  as  a 
valid  contract  at  common  law10  which  would  be  only  if 
executed  by  competent  parties11  in  a form  not  prohibited 
by  statute,12  and  if  for  a lawful  purpose  not  contrary  to 
public  policy,  and  for  sufficient  consideration;13  and,  if 
conditions  are  superadded  beyond  what  the  law  requires, 
it  will  be  declared  void  as  to  those  conditions  if  separable 
from  those  required  by  law,14  or  if  not  separable  the  bond 
will  be  declared  void  as  a whole.15 

(b.)  Under  “school  attendance”  bond. — By  section  2 
of  the  immigration  act  children  under  sixteen  years  of  age 
unaccompanied  by  a parent  are  excludable  “at  the  discre- 
tion of  the  Secretary  of  Commerce  and  Labor  or  under  such 
regulations  as  he  may  from  time  to  time  prescribe.”  The 
practice  has  become  well  established  in  enforcing  this  sec- 
tion and  rule  6 of  the  immigration  rules  drawn  there- 
under, to  require  a bond,  if  the  young  child  is  admitted, 
such  bond  providing  against  the  child’s  becoming  a public 
charge,  and  that  he  shall  be  kept  in  day  school  and  not 
be  placed  at  unsuitable  employment  until  he  reaches  the 
age  of  sixteen. 

While  the  law  does  not  specifically  authorize  the  taking 
of  a bond  in  this  class  of  cases,  there  is  hardly  room  for 
doubt  that  a bond  given  therein  is  enforceable,16  as  it  un- 
doubtedly is  a “voluntary  bond”  as  distinguished  from  a 
bond  extorted  “colore  officii  ” 

©United  States  v.  Bradley,  10  Pet.  343. 

loKountze  v.  Hotel  Co.,  107  U.  S.  378,  27  Law  Ed.  609. 

^United  States  v.  Linn,  15  Pet.  290. 
i2United  States  v.  Hodson,  10  Wall.  395. 

i3United  States  v.  Linn;  United  States  v.  Hodson;  United  States  v. 
Bradley,  supra. 

^United  States  v.  Bradley,  supra. 
isDaniels  v.  Tearney,  102  U.  S.  415,  26  Law  Ed.  187. 
leUnited  States  v.  Tingey,  5 Pet.  115,  8 Law  Ed.  66;  United  States  v. 
Bradley,  10  Pet.  343,  9 Law  Ed.  448;  United  States  v.  Hodson,  154  U.  S. 
580,  19  Law  Ed.  941;  Moses  v.  United  States,  166  U.  S.  571,  41  Law  Ed. 
1119. 


Deportation  Procedure.  655 

2.  For  Temporary  Purposes. 

(a.)  Transit  of  Japanese. — Bonds  are  required,  under 
Department  of  Commerce  and  Labor  Circular  No.  157,  for 
Japanese  who  fall  within  the  terms  of  the  last  proviso  to 
section  1 of  the  immigration  law  and  rule  11  of  the  immi 
gration  rules,  and  who  desire  to  go  through  the  United 
States  in  transit  to  some  other  country.  A Treasury  De- 
partment  circular  substantially  to  the  same  effect  as  rule 
17  of  the  Chinese  regulations,  which  deals  with  the  simi- 
lar subject  of  the  transit  through  the  United  States  of 
Chinese  laborers,  was  upheld  by  the  Supreme  Court  in 
the  case  of  Fok  Young  Yo  v.  United  States.17 

(b.)  Treatment  in  hospital. — Section  36  of  the  immi- 
gration act  provides  that  any  alien  residing  in  this  coun- 
try who  has  declared  his  intention  to  become  a citizen,  and 
who  may  send  for  his  wife  or  minor  children,  shall  have 
the  privilege  of  having  the  wife  or  child,  if  found  upon 
arrival  to  be  afflicted  with  any  contagious  disorder,  held 
until  it  can  be  ascertained  whether  the  disease  is  easily 
curable.  This  has  been  construed  by  the  Department  to 
refer  also  to  the  minor  children  of  naturalized  citizens, 
born  prior  to  the  naturalization  of  the  parent;  also  to 
indicate  that,  in  meritorious  cases,  the  wife  or  child  should 
not  only  be  held  until  it  can  be  ascertained  whether  the 
disease  will  be  easy  to  cure,  but  allowed  to  enter  hospital 
for  treatment  at  the  expense  of  the  husband  or  father; 
the  provision  in  section  19  of  the  act  that  “no  alien  certi- 
fied  to  be  suffering  from  tuberculosis  or  from  a 

loathsome  or  dangerous  contagious  disease  other  than  one 
of  quarantinable  nature  shall  be  permitted  to  land  for  med- 
ical treatment  thereof  in  any  hospital  in  the  United  States, 
unless  with  the  express  permission  of  the  Secretary  of 
Commerce  and  Labor,”  being  construed  to  allow  of  the 
submission  of  an  application  for  treatment  in  hospital,  not 
only  on  behalf  of  the  wives  and  minor  children  mentioned, 

iU85  TJ.  S.  296,  46  Law  Ed.  917. 


656  The  Exclusion  and  Expulsion  of  Aliens. 

but  of  other  aliens.18  Such  an  application  must  be  sub- 
mitted promptly,  the  time  allowed  being  the  same  as  in 
the  case  of  appeals.19 

Such  an  application  will  not  be  granted  unless  the 
case  is  altogether  meritorious,  and  the  application  must 
show:  (1)  That  treatment  is  necessary  to  meet  the 
ends  of  justice  and  humanity;  (2)  that  applicant,  or 
some  one  on  his  behalf,  is  willing  and  able  to  de- 
posit at  once  a sum  sufficient  to  pay  for  treatment  for  sixty 
days,  or  less  if  a shorter  time  is  estimated  as  that  within 
which  a cure  possibly  may  be  effected,  and  to  furnish  bond 
of  not  less  than  $300  providing  that  at  least  fifteen  days 
prior  to  the  expiration  of  said  period  a further  deposit  will 
be  made  sufficient  to  cover  cost  of  treatment  for  thirty 
days  additional  and  a remittance  of  a similar  amount 
fifteen  days  prior  to  the  expiration  of  the  period  covered 
by  this  deposit  and  so  on  until  the  alien  is  cured  and  per- 
manently landed  or  the  case  otherwise  disposed  of;  the 
bond  also  to  provide  that  a sum  sufficient  to  defray  the  cost 
of  forwarding  the  alien  to  final  destination  will  be  fur- 
nished when  and  if  needed,  and,  in  the  event  the  alien  is 
a person  who,  from  infancy  or  other  cause,  will  require 
an  attendant  to  accompany  him  to  final  destination  if 
landed,  or  to  the  country  of  origin,  if  eventually  deported, 
that  such  an  attendant  or  funds  sufficient  to  defray  the 
cost  of  employing  one  will  be  furnished.20  In  practice, 
admissions  to  hospital  are  kept  at  a minimum,  on  the 
theory  that  the  general  spirit  of  the  law  is  opposed  to 
action  which  tends  to  encourage  the  coming  to  United 
States  ports  of  aliens  who  are  diseased ; and  it  is  specially 
provided  by  the  rule  that  admission  for  treatment  shall 
not  be  regarded  as  a landing.21 

is  As  stated,  ante,  p.  310,  it  is  thought  that  under  the  law,  entrance  for 
hospital  treatment  can  be  claimed  by  such  wives  and  minor  children  as  a 
matter  of  right. 

isRule  19,  subd.  1 and  2. 

20Rule  19,  subd.  2. 

2iSubd.  4. 


Deportation  Procedure. 


657 


Chinese  aliens,  who  are  admissible  under  the  exclusion 
laws,  but  inadmissible  because  found  to  be  afflicted  with 
any  one  of  the  diseases  inhibited  by  the  immigration  laws, 
are,  of  course,  with  respect  to  hospital  treatment,  accorded 
the  same  privilege  as  aliens  of  other  races,  in  accordance 
with  rule  19  of  the  immigration  rules. 

Another  class  of  hospital  cases  arises  out  of  Department 
of  Commerce  and  Labor  Decision  No.  116,  the  immediate 
occasion  for  which  was  the  desire  of  residents  or  citizens 
of  Canada  and  other  nearby  countries  to  come  into  the 
United  States  for  treatment  in  sanitariums  for  maladies 
a successful  treatment  of  which  is  dependent  more  or  less 
on  climatic  conditions  existing  where  the  sanitariums  are 
located,  especially  tuberculosis.  Entry  for  this  purpose 
is  allowed  under  conditions  as  to  assurance  of  payment, 
bondings,  etc.,  similar  to  those  prescribed  by  rule  19,  it 
also  being  required  that  proper,  precautions  shall  be  taken 
to  prevent  any  spread  of  contagion  while  the  admitted 
alien  is  en  route;  and  likewise  for  his  departure  from  the 
United  States  at  the  termination  of  the  treatment. 

(c.)  Other  temporary  purposes. — It  is  customary  to 
admit,  in  the  discretion  of  the  Secretary,  under  bond  con- 
ditioned for  departure  from  the  United  States  within  a 
specified  time,  aliens  who  seek  to  enter  for  temporary 
purposes  (such  as  to  visit  relatives  or  to  transact  busi- 
ness) and  are  not  deemed  eligibile  to  remain  permanently, 
yet  are  not  mandatorily  excluded.  Such  bonds  are  drawn 
to  include  the  public  charge  clause,  and  to  require  de- 
parture when  the  purpose  of  the  temporary  entry  has  been 
effected,  a specific  date  being  set  as  that  on  or  before 
which  departure  must  occur. 

3.  In  connection  with  a writ  of  habeas  corpus. 

When  a writ  of  habeas  corpus  is  applied  for  on  behalf  of 
an  alien  denied  admission  to  the  United  States,  the  alien 
of  course  usually  remains  in  the  custody  of  the  immigra- 
tion official  in  charge,  or  of  the  master  of  the  vessel  if  he 
has  already  been  placed  on  board  a vessel  of  the  line  by 


658  The  Exclusion  and  Expulsion  of  Aliens. 

which  he  arrived,  until  the  issue  raised  by  the  petition  has 
been  determined.  Generally,  it  is  only  in  the  event  that 
an  appeal  is  taken  from  the  decision  of  the  district  court 
on  the  petition,  whether  such  appeal  is  on  behalf  of  the 
petitioner  or  of  the  Government,  that  the  question  of  re- 
leasing the  alien  under  a bail  bond  arises.  The  court  has 
an  ancient  inherent  power  to  release  such  a person  ;22  but 
this  power  is,  of  course,  a discretionary  one  and  may  be 
exercised  favorably  or  unfavorably,  as  the  court  pleases. 
In  practice,  especially  at  ports  where  the  appeal  may  be 
expected  to  be  determined  expeditiously,  the  alien  is 
usually  left  in  the  custody  of  the  immigration  officials,  if 
their  right  to  detain  and  deport  him  has  been  upheld  by 
the  court. 

4.  For  use  as  witnesses. 

By  section  19  of  the  immigration  act  it  is  provided  that 
the  deportation  of  any  alien  found  to  have  come  in  viola- 
tion of  any  provision  of  the  act  may  be  suspended  if 
the  Commissioner  General  of  Immigration  is  of  opin- 
ion that  such  alien  should  be  used  as  a witness  in 
prosecuting  an  offender  against  the  immigration  law. 
As  the  law  contains  no  provision  for  the  release  of 
such  alien  under  bond,  or  for  his  compensation  for 
time  lost  by  being  detained  in  confinement  pending  the 
trial  of  the  case  in  which  he  is  to  testify,  it  is  provided 
by  regulation23  that  the  case  “must  be  promptly  reported 
to  the  United  States  attorney  with  request  that  if  he  de- 
cides to  institute  proceedings  he  either  take  the  deposition 
of  the  alien  or  secure  a court  order  for  his  detention  as  a 
witness.”  In  such  case  a court  might,  but  it  is  appre- 
hended would  not  often,  release  the  alien  under  a bond 
conditioned  for  his  production  as  a witness  when  needed 
The  main  purpose  of  the  rule,  however,  insofar  as  it  re- 

2 2 Wright  v.  Henkel,  190  U.  S.  40,  51,  61,  47  Law  Ed.  948;  3 A.  & E. 
Eneyc.  691;  In  re  Chin  Wah,  182  Fed.  256. 

23Rule  25  and  Bureau  of  Immigration  and  Naturalization  Circular  No.  29. 


Deportation  Procedure. 


659 


lates  to  aliens  denied  admission  (as  distinguished  from 
those  arrested  within  the  country)24  is  to  avoid  the  hard- 
ship and  injustice  of  an  extended  detention  without  wit- 
ness fees  being  paid  to  cover  the  time  lost  by  their  use  as 
Government  witnesses. 

(b.)  Under  the  Chinese  Exclusion  Laws. 

There  is  no  provision  in  the  Chinese  exclusion  law  or 
regulations  for  the  acceptance  of  a bond  in  connection 
with  the  permanent  landing  of  Chinese ; in  that  connection 
bonds  are  taken  for  temporary  purposes  only. 

1.  Pending  investigation  and  determination  of  status. 

By  Department  of  Commerce  and  Labor  Circular  No. 

220  it  is  provided  that  Chinese  who  claim  to  be  mer- 
chants, teachers,  students,  or  travelers,  whether  coming 
to  the  United  States  for  the  first  time  or  returning,  as  well 
as  their  wives  and  children  if  they  are  accompanied  by  the 
latter,  may  be  admitted,  in  the  discretion  of  the  immigra- 
tion official  in  charge  at  a port  of  entry  for  Chinese,  under 
a bond  conditioned  for  the  production  of  the  applicant  or 
applicants  when  called  for  to  enable  the  inspectors  to 
make  more  thorough  inspection  and  investigation  regard- 
ing their  status.  If  further  investigation  shows  the  claims 
to  be  true,  the  bond  is  cancelled;  if  it  is  found  that  the 
applicant  is  an  impostor,  his  production  is  required  and 
he  is  deported.  This  bond  must  be  in  the  sum  of  $2,000 
unless  special  instructions  to  the  contrary  are  given  in 
any  case.  This  also  is  a “voluntary  bond,”  and  what  has 
already  been  said25  regarding  the  enforceability  of  “volun- 
tary bonds”  applies  to  the  Circular  220  bond,  as  indeed  it 
does  to  all  of  the  non-statutory  bonds  taken  by  adminis- 
trative officials  in  connection  with  proceedings  arising 
under  the  immigration  and  Chinese  exclusion  laws. 

2.  For  transit  through  the  United  States. 

Chinese  laborers  who  seek  the  privilege  of  passing 

24See  p.  664,  post. 

ttAnte,  pp.  653,  654. 


660  The  Exclusion  and  Expulsion  of  Aliens. 

through  the  United  States  to  foreign  territory  are  re- 
quired by  rule  17  of  the  Chinese  regulations  to  give  bond 
(which  must  be  furnished  by  them,  some  responsible  per- 
son on  their  behalf,  or  the  transportation  company  whose 
through  ticket  is  held  by  the  applicant),  “in  the  penal  sum 
of  $500,  conditioned  for  applicant’s  continuous  transit 
through  and  actual  departure  from  the  United  States 
within  a reasonable  time,  not  exceeding  twenty  days  from 
the  date  said  privilege  is  granted.”  The  validity  of  a cir- 
cular of  the  Treasury  Department  which  contained  re- 
quirements regarding  Chinese  in  transit  similar  to  those 
specified  in  rule  17  was  sustained  by  the  Supreme  Court  in 
the  case  of  Fok  Young  Yo  v.  United  States.26 

3.  Of  Chinese  seamen  discharged  or  on  shore  leave. 

To  prevent  violation  of  law  by  Chinese  seamen  dis- 
charged or  granted  shore  leave  in  ports  of  the  United 
States,  it  is  required,  by  rule  7 of  the  Chinese  regulations, 
that  “bond  with  approved  security  in  the  penalty  of  $500 
for  each  such  seaman  shall  be  exacted  for  his  departure 
from  and  out  of  the  United  States  within  thirty  days.” 
The  exaction  of  this  bond  has  the  sanction  of  the  courts — 
in  fact  the  promulgation  of  the  rule  was  the  direct  result 
of  holdings  by  the  courts  to  the  effect  that,  while  a Chinese 
seaman,  so  long  as  he  is  employed  bona  fide  as  such,  is 
not  excluded  from  entering  the  ports  of  the  United  States 
in  the  pursuit  of  his  calling,  his  entry  in  that  capacity 
affords  so  easy  a means  of  violating  the  exclusion  laws 
that  the  exaction  of  a bond  to  insure  his  and  his  em- 
ployer’s good  faith  is  wholly  justifiable.27 

Moreover,  the  rule  itself  seems  to  have  had  the  approval 
of  Congress ; for  when  H.  R.  13031  had  passed  the  House 

26185  U.  S.  296,  46  Law  Ed.  917;  see  also  In  re  Lee  Gon  Yung,  111  Fed. 
998. 

27 In  re  Ah  Kee,  22  Fed.  519;  In  re  Jam,  101  Fed.  989;  and  failure  to 
give  such  bond  on  the  part  of  a Chinese  seaman  renders  him  deportable  as 
a laborer  who  within  thirty  days  after  his  release  from  hospital  has  failed 
in  his  efforts  to  reship.  United  States  v.  Wong  I£ee,  19§  Fed.  583. 

2857th  Cong.,  First  Sess,  * 


Deportation  Procedure. 


661 


with  a provision  similar  to  the  rule,  but  requiring  a bond 
in  the  sum  of  $2,000,  included,29  and  after  Senate  Bill  296030 
had  been  extensively  debated  in  the  Senate,  Senator  Platt 
of  Connecticut  introduced  an  amendment  which,  with 
slight  changes,  became  the  Act  of  1893 ; and,  in  explaining 
his  purpose  in  asking  that  his  shorter  measure  be  passed 
rather  than  the  long  and  minutely  detailed  one  which  had 
received  the  approval  of  the  House,  used  language  plainly 
showing  that  it  was  his  purpose  to  give  legislative  sanc- 
tion and  approval  to  the  then  existing  regulations  of  the 
Treasury  Department  regarding  the  exclusion  of  Chinese, 
including  the  rule  requiring  bond  to  be  furnished  for 
seamen  discharged  or  allowed  shore  leave,  and  to  empower 
the  Secretary  to  continue  those  regulations  and  change 
and  extend  them  from  time  to  time,  as  might  be  found 
necessary.31 

In  a recent  case  it  has  been  held  by  a circuit  court  of 
appeals  that  a Chinese  seaman  might  be  released  under  a 
bond  required  by  a court,  and  the  bond  would  be  valid 
and  enforceable,  where,  the  seaman  being  charged  with 
violating  the  customs  laws  on  a prior  trip  to  the  United 
States,  is  brought  to  trial  for  said  offense  and  applies  for 
enlargement  on  bail  as  a person  charged  with  crime;  that 
the  fact  that  he  was  a “laborer”  in  the  sense  that  he  was 
performing  manual  labor  as  a seaman,  did  not  make  his 
release  in  the  United  States  under  bond  illegal  or  justify 
relieving  the  sureties  on  the  bond  of  their  responsibility 
thereunder.82 

4.  In  connection  with  the  writ  of  habeas  corpus. 

Prior  to  the  passage  of  the  exclusion  Act  of  May  5,  1892, 
the  practice  prevailed  quite  generally  for  Chinese  seeking 
admission  to  the  country  to  obtain  release  under  a bail 

29See  p.  12,  pt.  2,  H.  R.  Report  1231,  57th  Cong.,  1st  Sess.,  and  pp.  3662, 
3901-2,  Vol.  35,  Cong *1  Record. 

3°57th  Congress,  1st  session. 

3i35  Cong  ’1  Record  4245. 

32United  States  v.  Ah  Fook  et  al,  183  Fed.  33. 


662  The  Exclusion  and  Expulsion  of  Aliens. 


bond  pending  determination  of  their  claimed  right  to 
enter.33  So  serious  were  the  abuses  arising  from  this 
practice  that  Congress  provided  in  section  5 of  the  act 
mentioned : “That  after  the  passage  of  this  act,  on  an  ap- 
plication to  any  judge  or  court  of  the  United  States  in  the 
first  instance  for  a writ  of  habeas  corpus,  by  a Chinese 
person  seeking  to  land  in  the  United  States,  to  whom  that 
privilege  has  been  denied,  no  bail  shall  be  allowed,  and 
such  application  shall  be  heard  and  determined  promptly 
without  unnecessary  delay.” 

Even  before  the  passage  of  the  above-quoted  provision, 
it  was  held  that,  where,  after  a Chinese  applicant  on  whose 
behalf  a hearing  had  been  granted  by  a court  under  a writ 
of  habeas  corpus  sued  out  to  test  the  correctness  of  the 
administrative  decision  refusing  the  applicant  the  right 
to  land,  the  applicant  had  been  remanded  to  the  adminis- 
trative officials  for  deportation,  and  it  was  found  that  the 
vessel  by  which  deportation  was  to  be  effected  had  sailed, 
the  court  had  no  authority  to  release  the  alien  on  her  own 
recognizance.34 

The  courts  have,  of  course,  felt  bound  by  the  explicit 
terms  of  section  5 of  the  Act  of  1892  to  refuse  bail  “in 
the  first  instance”  when  application  was  made  therefor  by 
Chinese  seeking  to  enter  the  country  and  denied  that  privi- 
lege, and  on  whose  behalf  an  effort  was  made  to  overturn 
the  administrative  decision  by  a habeas  corpus  proceeding 
in  court.35  And,  quite  naturally,  they  have  gone  further, 
with  respect  to  this  matter  and  held  that,  inasmuch  as  by 
the  specific  terms  of  the  act  bail  must  be  denied  when  ap- 
plied for  “in  the  first  instance,”  there  is  all  the  better 
reason  for  refusing  to  enlarge  on  bail  a Chinese  applicant 
whose  writ  of  habeas  corpus  has  been  dismissed  and  who 

33Case  of  the  Unused  Tag — In  re  Ah  Kee,  21  Fed.  701;  In  re  Chow  Goo 
Pooi,  25  Fed.  77. 

34 in  re  Ah  Moy,  21  Fed.  808. 

35 Jn  re  Ong  Lung,  125  Fed.  813;  In  re  Chin  Wah,  182  Fed.  256;  In  re 
Jem  Yuen,  188  Fed.  350. 


Deportation  Procedure. 


663 


has  applied  for  release  under  a bail  bond  pending  the  out- 
come of  an  appeal  taken  on  his  behalf  to  a higher  court.30 
In  the  Jem  Yuen  case,37  it  being  the  avowed  purpose  of  the 
applicant’s  attorney  to  ask  for  a review  by  the  Supreme 
Court  of  the  decision  of  the  district  court  dismissing  the 
writ,  application  was  made  to  the  district  court  for  en- 
largement on  bail  pending  the  taking  of  the  appeal  to  the 
Supreme  Court,  and  this  being  refused,  application  was 
then  made  to  a justice  of  the  Supreme  Court  for  the  release 
of  the  alien  on  bail,  but  the  refusal  of  the  district  court 
to  grant  the  request  was  concurred  in,  and  the  applicant 
compelled  to  remain  in  confinement  in  the  immigration 
station,  pending  decision  of  his  case  by  the  Supreme  Court. 
(His  appeal  to  that  court  was  subsequently  dismissed  on 
motion  of  his  counsel.)  In  disposing  of  the  application 
for  release  on  bail,  the  district  judge,  after  a quite  full 
review  and  discussion  of  the  prior  decisions  on  the  sub- 
ject, said:  “As  to  such  cases  (of  applicants  for  admis- 
sion) I am  unable  to  doubt  that  Congress  intended  to  for- 
bid admission  to  the  country  upon  bail I should 

not  consider  myself  justified  in  granting  this  application 
even  if  satisfied  that  I have  the  power  to  grant  it  by  an 
exercise  of  discretion.” 

5.  For  use  as  witnesses. 

There  is  no  provision  in  the  Chinese  exclusion  laws  for 
the  suspension  of  deportation  of  a rejected  applicant  in 
order  that  his  testimony  may  be  used  in  prosecuting  of- 
fenders against  the  statute;  but  it  often  becomes  neces- 
sary to  use  Chinese  as  witnesses  against  those  who  have 
attempted  to  smuggle  them  into  the  United  States.  When 
such  a case  arises  it  is  customary  to  report  the  matter  to 
the  court  having  jurisdiction  of  the  trial  in  which  the 
alien’s  testimony  is  wanted;  so  that  the  court  can  issue  a 

36 In  re  Chin  Yuen  Sing,  65  Fed.  788;  In  re  Jem  Yuen,  188  Fed.  350;  see 
also  argument  of  Solicitor  General  in  Ah  How  v.  United  States,  193  U.  S. 
65,  74,  48  Law  Ed.  619. 

37188  Fed.  350. 


664  The  Exclusion  and  Expulsion  of  Aliens. 


proper  order,  either  for  the  holding  of  the  witness  at  the 
station  where  detained  by  immigration  officials,  or  for  his 
release  under  bond  insuring  his  appearance  as  a witness, 
according  to  the  manner  in  which  the  court  deems  its  dis- 
cretion should  be  exercised. 

2.  Of  Aliens  Arrested  Within  the  Country. 

(a.)  Under  the  Immigration  Law. 

1.  Pending  issuance  of  deportation  warrant. 

By  section  20  of  the  immigration  act  provision  is  made 
for  the  release  “under  bond  in  the  penalty  of  not  less  than 
five  hundred  dollars  with  security  approved  by  the  Secre- 
tary of  Commerce  and  Labor,”  of  aliens  proceeded  against 
for  deportation,  the  bond  to  be  conditioned  for  the  pro- 
duction of  the  alien  for  hearing  when  required  and  for  de- 
portation if  found  to  be  unlawfully  in  the  United  States. 
In  practice  the  amount  of  the  bond  is  usually  fixed  at  $500, 
and  the  bond  must  be  approved,  by  either  the  Department 
or  the  local  United  States  attorney,  before  the  alien  is 
released  thereunder.38  It  is  also  required,  in  this  connec- 
tion, that  no  alien  unable  to  give  bail  shall  be  held  in  jail 
if  any  other  secure  place  of  detention  is  available.39 

2.  Ih  connection  with  a writ  of  habeas  corpus. 

It  is  customary  for  the  courts,  in  the  exercise  of  their  in- 
herent discretion  to  release  on  bail  in  connection  with 
habeas  corpus  proceedings,  aliens  arrested  within  the 
country  and  held  by  the  immigration  officials  for  deporta- 
tion, on  whose  behalf  a writ  has  been  sued  out  to  test  the 
legality  of  the  administrative  order.  There  being  no  pro- 
hibition, or  even  regulation,  of  this  practice  in  the  statute, 
it  is  left  to  the  discretion  of  the  court  in  each  instance,  to 
be  exercised  favorably  or  unfavorably  as  circumstances 
are  deemed  to  require. 

3.  For  use  as  witnesses. 

There  is  no  specific  provision  in  the  law  for  holding 

38Rule  22,  sub.  5,  Immigration  Rules. 

39  Ibid. 


Deportation  Procedure. 


665 


arrested  aliens  for  use  as  witnesses,  although  there 
is  such  a provision  regarding  aliens  rejected  when  en- 
deavoring to  enter.41  The  detention  of  such  aliens  for 
use  as  witnesses  is,  therefore,  governed  by  the  prac- 
tice which  obtains  generally  in  courts  of  law;  where 
it  is  necessary  to  have  witnesses  bound  over  to  appear 
and  testify  or  to  take  their  depositions  de  bene  esse 
in  suits  arising  under  the  alien  contract  labor  provisions 
of  the  immigration  law  it  is  permissible  to  take  deposi- 
tions;42 so  that,  where  an  alien  witness  is  about  to  be 
removed  from  the  country  his  testimony  may  be  preserved 
by  the  de  bene  esse  process. 

(b.)  Under  the  Chinese  Exclusion  Laws. 

1.  In  general. 

By  section  2 of  the  Act  of  November  3,  1893,  it  is  pro- 
vided that  the  order  of  deportation  issued  in  the  case 
of  a Chinese  person  arrested  and  brought  to  trial 
before  a United  States  commissioner  or  court  shall 
be  executed  by  the  United  States  marshal  of  the  district 
within  which  such  order  was  made,  and  he  shall  execute 
the  same  with  all  convenient  dispatch;  and  pending  the 
execution  of  such  order  such  Chinese  person  shall  remain 
in  the  custody  of  the  United  States  marshal  and  shall  not 
be  admitted  to  bail. 

Therefore,  the  right  to  bail  of  a Chinese  person  arrested 
for  deportation  is  determinable,  not  by  the  rule  applicable 
to  ordinary  cases  under  the  writ  of  habeas  corpus , but  by 
these  specific  provisions  of  law.43 

2.  Pending  hearing  before  United  States  commissioner. 

It  has  been  held  that  the  Act  of  1893  is  not  intended  to 

prevent  the  release  under  bail  of  an  arrested  Chinese 

41  See  section  19  of  the  Immigration  Act,  rule  25,  of  the  Immigration 
Regulations,  and  Bureau  of  Immigration  and  Naturalization  Circular  No.  29. 

42Moller  y.  United  States,  57  Fed.  490}  Hepner  v.  United  States,  213  U. 
S.  103,  53  Law  Ed.  720. 

43 In  re  Jem  Yuen,  188  Fed.  350;  In  re  Chin  Wah,  182  Fed.  256;  Chan 
Gun  v.  United  States,  9 Appeals  D.  C.  290. 


666  The  Exclusion  and  Expulsion  of  Aliens. 


pending  the  hearing  of  his  case  before  a United  States 
commissioner,44  and  it  is  customary  in  some  districts 
to  permit  release,  particularly  where  it  is  apparent 
that  the  ends  of  justice  demand  that  the  hearing  and  de- 
termination of  the  case  shall  not  be  hurried.  Along  the 
land  boundaries,  however,  where  many  cases  arise  in 
which  the  Chinese  patently  have  been  smuggled  in,  bail  is 
often  refused  or  placed  at  so  high  an  amount  as  to  prac- 
tically prohibit  its  being  furnished  or  to  insure  its  non- 
forfeiture if  furnished. 

3.  Pending  decision  on  appeal. 

Pending  appeal  upon  the  decision  by  a commissioner  or 
a court,  an  arrested  Chinese  person  may  be  released  under 
bail,  his  release  under  such  circumstances  being  a matter 
inherently  within  the  discretion  of  the  court.45  But  where 
it  appears  from  the  record  that  the  defendant  entered  and 
remained  in  the  United  States  in  plain  defiance  of  law  bail 
will  be  refused;46  also  where  the  court  has  affirmed  the 
commissioners  order  on  appeal,  and  the  only  further  step 
to  be  taken  is  actual  deportation  in  pursuance  of  the  de- 
cision.47 In  the  Ah  How  case  the  Supreme  Court  was 
asked  to  express  an  opinion  as  to  the  right  of  the  appel- 
lants to  give  bail  pending  their  appeal  but  declined  to  do 

**In  re  Lum  Poy  et  al.,  128  Fed.  974. 

45Chin  Wah  v.  Colwell,  187  Fed.  592 ; In  re  Chin  Wah,  182  Fed.  256 ; In  re 
Ah  Tai,  125  Fed.  795;  and  under  Act  702  of  the  Philippines  Commission 
in  the  case  of  a Chinese  person  who  has  appealed  to  the  Supreme  Court 
of  the  Philippines  from  a judgment  of  a court  of  first  instance  ordering 
his  deportation.  United  States  v.  Go  Siaco,  12  Phil.  Rep.  490.  Bail  may 
be  allowed  where  Chinese  persons  are  arrested  on  the  ground  of  being  un- 
lawfully here  and  after  an  affirmance  of  the  commissioners ’s  order  of  de- 
portation by  a district  court,  and  pending  an  appeal  taken  to  the  Circuit 
Court  of  Appeals.  Although  granting  bail  under  these  conditions  is  not 
specifically  authorized  by  law  it  does  not  violate  public  policy  or  the  pro- 
visions of  the  Act  of  November  3,  1893,  since  the  prohibition  therein  con- 
tained against  the  granting  of  bail  is  applicable  only  to  cases  where  a final 
order  of  deportation  has  been  issued.  United  States  v.  Yee  Yet,  United 
States  v.  Yee  Kee  Guey,  192  Fed.  577. 

^United  States  v.  Fat  Chung,  132  Fed.  109. 

win  re  Chin  Wah,  182  Fed.  256. 


Deportation  Procedure. 


667 


so,  the  point  having  become  a moot  one ; however,  the  argu- 
ment of  the  Solicitor  General  in  that  case  is  of  interest 
and  value.48 

4.  For  use  as  witnesses. 

What  has  already  been  said49  regarding  the  holding,  or 
release  under  bond,  of  alien  witnesses,  with  respect  to 
whom  there  is  no  specific  statutory  authority  for  such 
action,  applies  with  equal  force  to  Chinese  arrested  within 
the  country  and  those  rejected  at  the  ports  and  aliens  of 
other  races  arrested  in  deportation  proceedings. 

V.  Place  to  Which  Deported. 

1.  Under  the  Immigration  Law. 

(a.)  Of  Aliens  Refused  Admission. 

1.  At  seaports. 

While  it  is  provided  by  section  19  of  the  immigration 
act  “that  all  aliens  brought  to  this  country  in  viola- 
tion of  law  shall,  if  practicable,  be  immediately  sent 
back  to  the  country  whence  they  came  on  the  vessels 
bringing  them,”  the  same  section  penalizes  the  fail- 
ure or  refusal  of  such  a vessel  to  return  rejected  aliens  “to 
the  foreign  port  from  which  they  came.”  In  practice, 
therefore,  it  is  conceded  that  all  the  United  States  authori- 
ties can  compel  the  vessel  to  do  is  to  return  the  alien  to 
the  port  at  which  he  was  taken  on  board ; but,  as  a matter 
of  fact,  at  least  so  far  as  European  and  West  Asiatic 
aliens  are  concerned,  the  result  usually  is  that  the  alien 
is  taken  back  to  his  home  or  place  of  origin,  for  generally 
transportation  companies  are  not  permitted  by  the  laws 
and  regulations  of  the  countries  in  which  the  large  sea 
ports  of  embarkation  are  located  to  leave  the  alien  at  such 
a port,  and  unless  the  company  arranges  for  his  prompt 
migration  to  some  other  transoceanic  country,  it  must 

48Ah  How  v.  United  States,  193  U.  S.  65,  48  Law  Ed.  619. 

**Ante,  p.  664. 


G68  The  Exclusion  and  Expulsion  of  Aliens. 

make  arrangements  to  remove  liim  from  the  country  in 
which  he  has  merely  sojourned  as  an  incident  to  his  at- 
tempted migration  to  the  United  States.  The  right  of  the 
Government  to  enforce  the  return  to  the  foreign  port  of 
embarkation  at  the  expense  of  the  vessel  bringing  the  alien 
is  discussed  in  a very  recent  decision  of  the  Supreme 
Court,50  wherein  it  was  held  that  the  taking  in  Bremen 
of  a sum  sufficient  to  pay  return  fare  of  an  alien  whose 
admissibility  was  questionable  and  the  retention  of  such 
amount  after  the  arrival  of  the  alien  at  New  York  consti- 
tuted an  offense  punishable  under  section  19. 

Aliens  applying  to  enter  the  United  States  at  Canadian 
seaports  are  treated  exactly  as  those  applying  at  United 
States  seaports;  this  being  possible  under  the  agreement 
between  Canadian  transportation  companies  and  the  Com- 
missioner General,  embodied  in  rule  12  of  the  immigration 
rules. 

2.  At  land  border  ports. 

Aliens  applying  for  entry  at  land  border  ports  fall 
into  two  classes:  (a)  Those  who  are  citizens  or  bona  fide 
residents  of  Canada  or  Mexico;  and  (b)  those  who  are 
really  coming  from  some  trans-oceanic  country  and  have 
entered  Canada  or  Mexico  merely  as  an  incident  to  their 
attempt  to  enter  the  United  States. 

With  respect  to  the  first  class,  whether  they  come  from 
Canada  or  Mexico,  if  they  are  rejected  at  the  border  port, 
all  the  United  States  immigration  officials  can  do  is  to 
turn  them  back  into  that  country,  except  that  under  the 
agreement  between  Canadian  railway  lines  and  the  Com- 
missioner General,  aliens  of  said  class  brought  by  such  a 
railway  to  a border  point  and  then  rejected  by  a board  of 
special  inquiry,  “shall  be  returned  a reasonable  distance 
in  Canada  from  the  boundary  by  the  transportation  com- 
pany which  brought  them  thereto.”51 

With  respect  to  the  second  class,  the  same  thing  is  true, 

soUnited  States  v.  Nord  Deutseher  Lloyd,  223  U.  S.  512,  56  Law  Ed. . 

siPar.  c.,  subd.  7,  rule  12,  Immigration  Rules. 


Deportation  Procedure. 


669 


except  that  under  the  agreement  mentioned,  the  Canadian 
steamship  companies  parties  thereto  may  be  required 
“whenever  in  the  judgment  of  the  Secretary  of  Commerce 
and  Labor  the  deportation  of  such  aliens  in  the  manner 
described  is  deemed  necessary  to  safeguard  the  interests 
of  the  United  States,”  to  return  to  the  transoceanic  coun- 
try of  embarkation,  any  member  of  said  class  who  is  re- 
jected for  statutory  reasons  at  any  Canadian  border 
port.52 

( b. ) Of  Aliens  Arrested  within  the  Country. 

Section  20  of  the  immigration  act  provides  for  the  de- 
portation within  three  years  after  entry  of  aliens  who 
enter  in  violation  of  law  or  become  public  charges,  to  the 
country  whence  they  came.  Section  21,  regarding  the  de- 
portation of  aliens  deportable  “under  any  law  of  the 
United  States’’  also  contains  the  expression  “country 
whence  they  came.”  But  section  35  is  to  the  effect  that 
aliens  arrested  within  the  country  and  ordered  deported 
shall  be  returned  to  “the  transatlantic  or  transpacific 
ports  from  which  said  aliens  embarked  for  the  United 
States ; or,  if  such  embarkation  was  for  foreign  contiguous 
territory,  to  the  foreign  port  at  which  said  aliens  em- 
barked for  such  territory.” 

Section  3 of  the  Act  of  1907,  as  amended  by  section  2 of 
the  Act  of  1910,  provides  for  the  deportation  of  certain 
classes  of  immoral  aliens  named  therein  “in  the  manner 
provided”  by  sections  20  and  21 ; and  also  that  any  alien 
convicted  thereunder  of  a violation  of  the  criminal  pro- 
visions of  said  section,  shall,  “at  the  expiration  of  this 
sentence,  be  taken  into  custody  and  returned  to  the  coun- 
try whence  he  came,  or  pf  which  he  is  a subject  or  citizen, 
in  the  manner  provided  in  sections  20  and  21.” 

It  has  been  held  that  sections  20,  21  and  35  must  be 
construed  together  in  determining  the  country  to  which 
an  arrested  alien  shall  be  deported;53  and  doubtless  the 

52Par.  b.,  subd.  7,  rule  12,  Immigration  Rules. 

5%Ex  parte  Hamaguchi,  161  Fed.  185. 


670  The  Exclusion  and  Expulsion  of  Aliens. 

above-quoted  provision  of  section  3 as  amended  gives  fur- 
ther ground  for  so  holding.  A circuit  court  of  appeals 
has  recently  expressed  the  opinion  that  sections  20  and 
21  and  section  3 ought  to  be  construed  together,54  holding 
broadly  and  unequivocally  that  the  words  of  the  statute 
“returned  to  the  country  whence  he  came”  must, 
in  the  light  of  the  history  and  obvious  purpose 
of  sections  20  and  21,  be  held  to  mean  the  place 
of  nativity  or  citizenship,  especially  as  it  may 
readily  be  conceived  that  it  is  no  uncommon  occur- 
rence for  an  alien  to  come  immediately  from  some  country 
in  which  he  does  not  belong  and  to  which  it  could  hardly 
be  the  intent  of  Congress  that  he  should  be  returned ; and 
intimating  that,  in  its  judgment,  the  words  “of  which  he 
is  a subject  or  citizen,”  in  section  3 as  amended,  being  the 
latest  word  of  Congress  on  the  subject,  might  properly  be 
regarded  as  applying  to  each  and  every  section  of  the  act. 
But  the  court  did  not  find  it  absolutely  necessary  to  rely 
upon  this  expression  in  order  to  reach  the  conclusion  above 
stated,  and  it  is  to  be  noted  that  the  court  did  not  consider, 
or  at  least  did  not  discuss,  the  provisions  of  section  35  of 
the  act,  requiring  that  the  deportation  of  arrested  aliens 
shall  be  to  the  transatlantic  or  transpacific  ports  at  which 
they  embarked  for  the  United  States,  or  if  they  embarked 
for  foreign  contiguous  territory,  to  the  foreign  port  at 
which  they  embarked  for  such  territory — which  section 
might,  perhaps,  be  regarded  as  partly  limiting  the 
Secretary’s  discretion  as  to  the  place  to  which  an 
arrested  alien  shall  be  sent.  However,  it  would  seem 
that  section  35  really  has  to  do  with  the  port  to 
which  an  arrested  alien  shall  be  sent  when  getting  him 
out  of  this  country  and  back  to,  or  at  least  toward,  the 
country  of  his  origin.  As  a matter  of  fact,  this  section 
was  adopted  by  Congress  to  enable  the  Commissioner 
General  to  enter  into  effective  contracts,  under  the  pro- 
visions of  sections  22  and  32,  whereby  the  control  of  immi- 
6<Frick  v.  Lewis,  195  Fed.  693. 


Deportation  Procedure. 


671 


gration  from  and  through  Canada  and  Mexico  might  be 
made  thoroughly  effective,  by  having  transportation  com- 
panies carrying  alien  passengers  to  those  countries  des- 
tined to  the  United  States  agree  to  return  them  to  the  for- 
eign port  of  embarkation  at  their  expense  in  case  they 
were  subsequently  found  to  be  in  the  United  States  in 
violation  of  law.  Such  a provision  is  contained  in  the 
existing  agreements  with  Canadian  transportation  com- 
panies.55 

It  was  held  in  a much  earlier  case,  which  arose  under 
the  act  of  1891,  that  temporary  residence  in  British  Co- 
lumbia had  no  effect  on  the  place  to  which  certain  aliens 
of  French  extraction  should  be  deported,  where  it  was 
shown  that  they  had  come  directly  to  this  country  from 
France,  had  entered  unlawfully,  and  during  the  period 
of  one  year  within  which,  under  the  act  mentioned,  aliens 
found  to  be  unlawfully  here  were  subject  to  deportation, 
had  left  temporarily  for  a visit  to  British  Columbia  and 
returned  therefrom  to  the  United  States;  but  that  France 
was  the  proper  place  to  which  to  deport  them.56 

Although  doubtless  the  proper  country  to  which  to  de- 
port an  arrested  alien  is  that  of  his  allegiance,  which  in 
roost  cases  would  be  that  of  which  he  is  a subject  or  citizen, 
it  can  readily  be  understood  that  cases  may  arise  with 
some  frequency  in  which  the  existence  of  a temporary 
allegiance,  entered  into  and  subject  to  maintenance  with 
the  consent  of  a sovereign  other  than  the  country  of 
origin,  would  justify  deportation  to  such  country  rather 
than  to  the  state  to  which  the  alien  owes  national  alle- 
giance. 

Under  section  36  of  the  immigration  act  aliens  who 
enter  the  United  States  at  places  other  than  those  desig- 
nated as  ports  of  entry  by  the  Secretary  of  Commerce  and 
Labor  are  subject  to  deportation  as  being  unlawfully  in 
the  country.  This  provision  applies  to  Chinese  as  well  as 

ssPar.  d.,  subd.  7,  rule  12,  Immigration  Rules. 

66Lavin  v.  Le  Fevre,  125  Fed.  693. 


672  The  Exclusion  and  Expulsion  of  Aliens. 

all  other  aliens.57  When  section  36  is  construed  in  con- 
nection with  sections  20,  21,  and  35  the  deportation  des- 
tination of  such  persons,  when  found  unlawfully  in  the 
United  States,  naturally  is  their  country  of  origin;  the 
word  “ports”  in  section  35,  as  already  seen,  indicating  the 
particular  place  to  which  they  shall  be  conveyed  when 
getting  them  back  to  such  country.  But  the  question  of 
what  to  do  with  Chinese  aliens  arrested  while  attempting 
to  enter  across  the  Canadian  border  at  first  presented  some 
difficulty  when  their  arrest  was  accomplished  by  immigra- 
tion officials. 

It  seems  strange,  in  view  of  the  fact  that  the  Attorney 
General  held  as  early  as  June,  1903,  that  the  immigration 
Act  of  1903  applied  to  Chinese  as  well  as  to  all  other 
aliens,58  that  the  administrative  officers  were,  as  shown 
by  the  reported  cases,  so  slow  to  realize  that  the  immigra- 
tion law  afforded  an  easy  and  summary  means  of  ridding 
the  country  of  Chinese  who  entered  surreptitiously,  and 
returning  them  to  the  country  of  their  origin,  usually 
China.  The  first  effort  in  that  direction  seems  to  have 
been  the  Chow  Chock  case,59  in  which  a number  of  Chinese 
aliens  who  attempted  to  cross  the  border  of  northern  New 
York  in  April,  1908,  were  taken  into  custody  in  the  act 
of  crossing  and  conveyed  to  Malone,  the  nearest  port  of 
entry,  where  they  were  given  the  administrative  examina- 
tion accorded  Chinese  applicants  for  admission  and  were 
rejected.  This  action  was  sustained  by  the  district  court, 
Northern  District  of  New  York,  and  also  by  the  Circuit 
Court  of  Appeals,  Second  Circuit.60  Then  the  officers 
attempted  to  return  the  Chinese  to  China,  knowing  that 
Canada  would  not  allow  their  return  there  unless  a head 
tax  of  $500  were  paid  for  each ; but  while  they  were  being 

57 Ex  parte  Wong  You  et  al.,  176  Fed.  933;  United  States  v.  Wong  You 
et  al.,  223  U.  S.  67,  56  Law  Ed. . 

5824  Op.  Atty.  Gen.  706. 

59161  Fed.  627. 

wibid.,  and  163  Fed.  1021. 


Deportation  Procedure. 


G73 


conveyed  to  San  Francisco  for  transportation  to  China,  a 
writ  of  habeas  corpus  was  sued  out  in  the  Third  Circuit, 
which  was  dismissed  by  the  district  court,  but  allowed  by 
the  Circuit  Court  of  Appeals,61  the  court  holding  that 
Chinese  examined  and  rejected  at  a land-border  port  of 
entry  can,  under  the  Chinese  exclusion  law,  merely  be 
turned  back  into  the  country  from  which  at  the  time  they 
are  seeking  admission,  and  cannot  be  taken  into  custody 
and  conveyed  to  some  other  country  across  seas.  Failing 
to  obtain  the  court’s  approval  of  this  attempted  method, 
the  immigration  officials  next  attempted  to  apply  to 
Chinese  surreptitiously  entering,  the  provisions  of  the 
immigration  law,  which  gave  rise  to  the  test  case  of 
Wong  You  et  al.,  being  a party  of  Chinese  arrested  on  de- 
partmental warrants  in  northern  New  York  in  1909. 
This  method  was  approved  by  the  district  court,62 
in  a decision  exhaustive  of  the  subject,  holding  that,  the 
fact  that  an  alien  happens  to  be  of  the  Chinese  race  in  no 
sense  excuses  him  from  compliance  with  the  general  law 
regarding  the  entry  of  aliens,  and  that  if  such  an  alien 
enters  the  country  in  violation  of  both  the  immigration 
and  the  exclusion  laws,  the  Government  may  elect  under 
which  law  it  will  proceed  for  his  deportation.  The  Circuit 
Court  of  Appeals,  Second  Circuit,  reversed  this  decision,63 
invoking  the  ancient  rule  generalia  specialibus  non  dero- 
ganty  and  holding  that,  as  Wong  You  and  his  companions 
were  shown  by  the  record  to  be  Chinese  laborers/  and  as 
the  special  statute  ( the  exclusion  laws ) , provide  a method 
of  excluding  and  expelling  laborers  (overlooking  the  fact 
that  the  provisions  of  the  law  applicable  to  the  case  relate 
to  all  Chinese  persons  except  officials),  the  general  law, 
although  simultaneously  violated,  could  not  be  used  to 
effect  the  removal  of  the  Chinese  to  the  country  of  origin. 

siLui  Lum  v.  United  States,  166  Fed.  106. 

62 Ex  parte  Wong  You  et  al.,  176  Fed.  933;  see  also  Ex  parte  Li  Dick,  174 
Fed.  674,  and  176  Fed.  998. 

63Wong  You  v.  United  States,  181  Fed.  313. 


674  The  Exclusion  and  Expulsion  of  Aliens. 


This  latter  decision  has,  however,  been  reversed  by  the 
Supreme  Court,64  the  opinion  being  expressed  that  “the 
Circuit  Court  of  Appeals  made  a mistaken  use  of  its  privi- 
leges of  interpretation ;”  that  by  the  language  of  the  imme- 
diate act  “any  alien  that  enters  the  country  unlawfully 
may  be  summarily  deported  by  order  of  the  Secretary  of 
Commerce  and  Labor, ” and  “that  language  undoubtedly 
applies  to  Chinese  as  well  as  all  other  aliens,”  and,  in  fact, 
as  the  law  “requires  deportation  to  the  transpacific  ports 
from  which  such  aliens  embarked  for  the  United  States, 
section  35,  it  is  rather  hard  to  say  that  it  has  not  the 
Chinese  specially  in  mind.” 

Pending  the  outcome  of  the  Wong  You  case,  however, 
administrative  officers  sought  to  obtain  another  solution 
of  the  dilemma  with  regard  to  what  disposition  to  make 
of  Chinese  found  entering  surreptitiously.  In  the  case 
of  Yuen  Pak  Sune  et  al ./5  the  facts  showed  that  Chinese 
persons  not  of  the  exempt  classes  were  apprehended  by 
the  immigration  authorities  in  an  attempt  to  enter  the 
United  States  from  Canada.  They  were  taken  to  the  near- 
est port  of  entry  for  Chinese,  and  there,  after  an  admin- 
istrative examination,  rejected  and  ordered  returned  to 
Canada.  When  the  attempt  was  made  to  return  them  to 
Canada  as  the  country  whence  they  came,  it  developed 
that  they  were  unable  to  pay  the  head  tax  of  five  hundred 
dollars  required  by  the  Canadian  law.  The  immigration 
authorities  then  released  the  Chinese  and  immediately  re- 
arrested them  as  being  unlawfully  in  the  country  under 
the  Chinese  exclusion  acts.  The  district  court,  to  which 
application  was  made  for  warrants  ordering  their  depor- 
tation to  China,  held  that  the  inability  of  the  immigration 
officers  to  return  the  petitioners  to  Canada  because  of 
their  lack  of  funds  to  meet  the  head  tax  required  was  not 
a bar  to  arrest  and  deportation  under  the  Chinese  exclu- 

eUJnited  States  v.  Wong  You,  Wong  Cheen  et  al.,  223  U.  S.  67,  56  Law 
Ed.  . 

65183  Fed.  260. 


Deportation  Procedure. 


675 


sion  acts;  that  although  apprehended  in  the  act  of  entry 
they  were  physically  within  the  United  States,  and  having 
as  a result  of  their  attempt  to  deliberately  violate  the  laws 
of  this  country  placed  themselves  in  this  position,  they 
could  not  be  heard  to  claim  that,  for  the  purposes  of  de- 
portation as  provided  by  these  laws,  they  had  established 
no  foothold  here.  This  decision  was  approved  by  the  Cir- 
cuit Court  of  Appeals  for  the  Second  Circuit.60 

In  view  of  the  decision  last  discussed  and  of  the  de- 
cision of  the  Supreme  Court  in  the  Wong  You  case,  it  may 
be  said  to  be  definitely  settled  that  any  Chinese  alien  who 
enters  the  country  surreptitiously,  and,  therefore,  in  vio- 
lation of  both  the  immigration  and  Chinese  exclusion 
laws,  may  be  deported  to  the  country  whence  he  came,  by 
any  one  of  three  procedures,  viz:  (1)  by  arresting  him 
on  a warrant  secured  from  a judge  or  commissioner  of  a 
United  States  court,  before  which  he  will  be  tried,  and,  if 
found  to  be  unlawfully  in  the  country,  will  be  ordered  to 
be  deported  to  China,  unless  he  shows  that  he  is  a citizen 
of  some  other  country,  and  even  then  if  that  other  country 
refuses  to  allow  his  return  without  the  payment  of  a head 
tax;67  (2)  by  taking  such  Chinese  first  before  the  immigra* 
tion  officers  at  a port  of  entry  for  Chinese  and  treating  him 
as  an  applicant  for  admission,  and  then,  if  he  is  rejected 
and  the  country  from  which  he  sought  admission  to 
enter  refuses  to  take  him  back,  he  may  be  taken 
before  a district  court  or  a commissioner  thereof,  and  ap- 
plication made  for  an  order  for  his  deportation  to  the 
country  from  which  he  came  to  that  from  which  he  was 
seeking  admission;  (3)  by  applying  to  the  Secretary  of 
Commerce  and  Labor  for  an  administrative  warrant  of 
arrest,  and  proceeding  in  accordance  with  the  terms  of  rule 
22  of  the  immigration  rules  for  his  deportation  to  the 
transpacific  (or  transoceanic)  country  whence  he  came. 

66191  Fed.  825. 

erSection  2,  Act  of  1892. 


676  The  Exclusion  and  Expulsion  op  Aliens. 


(c.)  Power  of  courts  to  interfere  if  wrong  country  se- 
lected. 

There  is  some  conflict  of  decision  regarding  the  au- 
thority of  the  courts  to  release  an  alien  under  the  writ  of 
habeas  corpus  where  it  is  made  to  appear  to  the  court  that 
the  immigration  officials  are  about  to  deport  the  alien  to  a 
country  other  than  that  from  which  he  actually  came  when 
he  entered  the  United  States.68  In  the  Ruiz  case  the  alien 
had  come  originally  from  Spain,  but  the  court  found  from 
the  record  that  his  entry  to  the  United  States  had  been 
accomplished  from  Panama;  that  the  Secretary’s  warrant 
directing  his  return  to  Spain  was  illegal  ; and  that  with- 
out regard  to  the  question  of  his  lawful  right  to  remain 
in  the  United  States,  the  court  must  release  him,  as  to  dis- 
miss the  writ  and  remand  him  to  custody  would  mean  his 
deportation  elsewhere  than  to  the  country  whence  he  came. 
In  the  Ueberall  case  the  court  held  that  the  alien  was  not 
entitled  to  release  on  the  ground  that  the  warrant  showed 
that  the  Secretary  of  Commerce  and  Labor  intended 
to  deport  him  to  the  wrong  country,  since  habeas 
corpus  can  be  used  to  release  an  alien  only  after  it 
has  been  ascertained  that  he  is  entitled  to  remain. 
The  record  showed  that  Ueberall  was  subject  to  de- 
portation, as  was  also  true  of  Ruiz.  Ueberall’s  last 
entry  had  been  from  Canada,  and  he  was  deported 
to  Europe.  In  Lewis  v.  Frick,69  Lewis,  a native  and  sub- 
ject of  Russia,  had  entered  the  United  States  at  the  port 
of  New  York  in  1904,  and  lived  here  continuously  until 
1911,  when  he  crossed  the  boundary  into  Canada  at  De- 
troit, and  after  remaining  in  Canada  about  one  hour  re- 
entered the  United  States.  He  was  arrested  charged  with 
entering  in  violation  of  law,  and  was  ordered  deported  to 
Russia.  He  was  released  by  the  district  court  on  the 
ground,  among  others,  that  the  Secretary  was  about  to 

68XJnited  States  ex  rel.  Ruiz  v.  Redfern,  186  Fed.  603;  United  States  ex 
rel.  Ueberall  v.  Williams,  187  Fed.  470. 

69189  Fed.  146. 


Deportation  Procedure. 


677 


cause  his  removal  to  a country  other  than  the  one  “whence 
he  came.”  This  decision  was  reversed  by  the  Circuit 
Court  of  Appeals,70  the  Ueberall  case  being  cited  with  ap- 
parent approval  and  the  Ruiz  case  with  apparent  disap- 
proval. The  weight  of  judicial  opinion,  therefore,  appears 
to  be  that  the  execution  of  an  administrative  warrant  of 
deportation  cannot  be  interfered  with  by  the  courts  on  the 
mere  allegation,  or  even  proof,  that  the  alien  involved  is 
about  to  be  transported  thereunder  to  a country  other  than 
that  “whence  he  came” 

2.  Under  the  Chinese  Exclusion  Laws. 

(a.)  Of  Chinese  Refused  Admission. 

1.  At  Seaports. 

By  section  12  of  the  Act  of  1882,  as  amended  by  the  Act 
of  1884,  it  is  provided  that  “the  United  States  shall 
pay  all  costs  and  charges  for  the  maintenance  and 
return  of  any  Chinese  person  having  the  certificate 
prescribed  by  law  as  entitling  such  Chinese  person  to 
come  into  the  United  States  who  may  not  have  been 
permitted  to  land  from  any  vessel  by  reason  of  any 
of  the  provisions  of  this  act.”  Section  9 of  said  act  re- 
quires that  no  Chinese  shall  be  permitted  to  leave  a vessel 
in  a port  of  this  country  in  violation  of  law  or  until  ex- 
amined and  passed  by  the  inspectors.  These  and  the  vari- 
ous provisions  of  the  exclusion  acts  denying  or  regulating 
the  right  of  entry  are  and  always  have  been  construed  by 
administrative  officials  to  require  that  rejected  Chinese 
shall  be  left  in  or  returned  to  the  custody  of  the  vessel  by 
which  brought  (according  to  whether  examined  in  the 
vessel  or  in  an  immigrant  station),  and  as  placing  upon 
the  vessel’s  owners  and  officers  the  duty  of  taking  the 
Chinese  back  to  the  place  whence  they  came,  although  the 
law  does  not  specifically  so  provide.  Nor  has  it  ever 
been  customary  for  the  Government  to  bear  any  of  the 

7°Frick  v.  Lewis,  195  Fed.  693. 


678  The  Exclusion  and  Expulsion  of  Aliens. 

expense  of  the  return  of  any  class  of  Chinese,  notwith- 
standing the  above-quoted  provision  on  that  subject,  it 
not  being  the  practice  of  Congress  to  make  any  provision 
for  that  purpose  in  its  annual  appropriations  for  the  en- 
forcement of  the  Chinese  exclusion  laws.71 

2.  At  Land  Border  Ports. 

Chinese  persons  and  persons  of  Chinese  descent  may 
enter  the  United  States  only  at  ports  declared  by  statute 
or  rule  to  be  ports  of  entry  for  aliens  of  that  race.72 
There  is  no  port  of  entry  for  Chinese  on  the  Mexican 
border.  Formerly  there  were  several  such  ports  of  an  un- 
limited character  on  the  Canadian  border;  but  the  entry 
of  Chinese  from  and  through  Canada  is  now  governed  by 
an  agreement  with  the  Canadian  Pacific  Railway  Com- 
pany, whereby  all  Chinese  coming  from  the  Orient  through 
Canada  are  examined  at  Vancouver,  British  Columbia, 
and  if  found  admissible  are  allowed  to  proceed  to  certain 
specified  border  ports  for  entry  under  the  certificate  of 
identification,  and  if  rejected  are  at  once  returned  to 
China  by  the  vessel  bringing  them  to  Vancouver.  These 
border  ports  are  also  open  to  Chinese  who  seek  admission 
to  the  United  States  from  Canada,  provided  they  hold  cer- 
tificates of  identity  issued  by  specified  United  States  im- 
migration officials  stationed  in  Canada.73  Such  Chinese, 
if  refused  admission  by  the  last-named  officials  are,  of 
course,  left  where  found,  i.  e.,  in  Canada. 

The  courts  have  regarded  the  land  border  porta  of  entry 
as  located  “at  the  limits  of  the  jurisdiction”  of  the  United 
States,  just  as  they  have  the  seaports  of  entry,75  although 
some  of  such  ports  are  really  well  within  the  territorial 
bounds  of  this  country.74 

7iRule  6,  Chinese  Regulations,  Append. 

72Section  7,  Act  of  September  13,  1888;  Rule  1,  Chinese  Regulations, 
Append. 

73Rule  1,  Chinese  Regulations,  Append. 

74United  States  v.  Sing  Tuck  et  al.,  194  U.  S.  161,  48  Law  Ed.  917. 

75United  States  v.  Ju  Toy,  198  U.  S.  253,  49  Law  Ed.  1040. 


Deportation  Procedure. 


679 


An  interesting  question  which  has  occasionally  been 
raised  but,  it  seems,  never  discussed  by  the  courts,  is 
whether  a Chinese  who  claims  to  be  an  American  citizen 
by  birth  may  properly  be  refused  examination  at  a port 
not  designated  as  a port  of  entry  for  Chinese  by  law  or 
regulation.  It  has  been  held  (quite  properly,  it  would 
seem)  by  administrative  officers  that  if  the  Chinese  has 
in  his  possession  documentary  evidence  of  a conclusive 
nature  to  show  that  he  was  born  in  the  United  States,  such 
as  a certified  copy  of  a decision  of  a court  with  his  photo- 
graph attached  under  seal,  so  that  no  question  of  fact 
regarding  the  applicant  remains  to  be  adjudicated,  he  may 
enter  at  any  port  or  place ; but  that,  if  any  question  of  fact 
must  be  adjudicated  in  connection  with  his  application,  he 
must  proceed  to  a port  of  entry  for  aliens  of  his  race 
where  are  stationed  officers  having  the  legal  right  to  ren- 
der a decision  on  such  a question. 

It  has  been  held  by  the  Canadian  courts  that  Chinese 
who  are  inadmissible  to  the  United  States  may  be  de- 
ported to  China  by  the  railway  and  steamship  line  in- 
volved, and  that  the  alien  cannot  be  released  in  Canada 
under  a writ  of  habeas  corpus.™ 

(b.)  Of  Chinese  arrested  within  the  Country. 

Section  12  of  the  Act  of  May  6,  1882,  and  section  13  of 
the  Act  of  September  13,  1888,  provide  that  any  Chinese 
person  found  to  be  unlawfully  in  the  United  States  shall 
be  removed  from  the  United  States  to  the  country  whence 
he  came.  Section  2 of  the  Act  of  May  5,  1892,  provides 
that  such  a person  shall  be  removed  from  the  United 
States  to  China,  unless  he  shall  make  it  appear  to  the  jus- 
tice, judge,  or  commissioner  before  whom  he  is  tried  that 
he  is  a subject  of  some  other  country;  with  the  further 
provision  that,  if  the  other  country  of  which  the  Chinese 
person  claims  to  be  a citizen  or  subject  demands  any  tax 

76Wing  Toy  et  al.  v.  Can.  Pac.  Ry.  Co.,  13  Quebec  Of,  Law  Rep.  172, 
King’s  Bench, 


680  The  Exclusion  and  Expulsion  of  Aliens. 


as  a condition  of  the  removal  of  such  person  to  that  coun- 
try, he  shall  be  removed  to  China.  The  burden  was  thus 
placed  on  the  Chinese  person  so  arrested  and  found  to  be 
unlawfully  in  this  country  to  show  that  he  is  entitled  to 
be  deported  elsewhere  than  to  China.77 

Where  certain  Chinese  persons  embarked  at  Hongkong 
and  eventually  came  to  this  country,  after  remaining  for 
varying  periods  of  time  in  Canada,  Hongkong,  and  not 
Canada,  was  held  to  be  the  country  whence  they  came,  it 
being  shown  that  at  the  time  of  departure  from  Hongkong 
they  intended  to  come  to  the  United  States  ;78  and  where  it 
appeared  that  a Chinese  laborer  found  to  be  unlawfully 
in  the  United  States  had  entered  from  British  Columbia 
and  that  he  had  a valid  right  under  the  laws  of  that  coun- 
try to  return,  British  Columbia  was,  under  the  exclusion 
laws,  the  “country  whence  he  came;”  the  opinion  of  the 
court  being  that  said  phrase  as  used  in  the  Act  of  October 
1,  1888,  did  not  necessarily  refer  to  China.79  The  fact 
that  a Chinese  ordered  deported  had  in  his  possession  a re- 
turn certificate  issued  by  the  Government  of  Canada,  to- 
gether with  the  absence  of  any  facts  indicating  that  he  had 
left  China  to  come  to  this  country,  was  considered  suffi- 
cient to  prove  the  right  to  return  under  the  Canadian 
law;80  and  it  was  held  in  a later  case  that  the  possession 
by  a Chinaman  of  a return  ticket  issued  by  Canadian  au- 
thorities, taken  in  connection  with  the  established  facts 
that  he  had  carried  on  a laundry  in  a Canadian  town  for 
months  and  had  been  in  the  same  province  for  a consid- 
erable time,  was  sufficient  to  show  that  he  had  acquired  a 
bona  fide  domicile  there.81  But  where  the  facts  showed 
that  a Chinese  person  who  had  entered  the  country  unlaw- 
fully could  not  be  returned  to  British  Columbia  except  by 

77United  States  v.  Sing  Lee,  125  Fed.  627 ; see  also  United  States  v.  Lee 
Kee,  116  Fed.  612;  20  Op.  Atty.  Gen.  171. 

78 Ex  parte  Wong  You  et  al .,  176  Fed.  933. 

79jw  re  Lee  Horn  Bow,  47  Fed.  302;  United  States  v.  Jim,  47  Fed.  431. 

soUnited  States  v.  Jim,  47  Fed.  431. 

siUnited  States  v.  Chong  Sam.  47  Fed.  878. 


Deportation  Procedure. 


681 


paying  a head  tax,  China  was  held  to  be  the  country  whence 
he  came;82  with  all  the  more  reason  because  it  was  shown 
that  the  alien’s  presence  in  Canada  was  no  more  than  in- 
cidental to  a clandestine  journey  to  this  country  from 
China  by  way  of  British  Columbia. 

In  a still  later  case  where  the  deportation  proceedings 
were  brought  under  the  Act  of  May  5, 1892,  it  was  held  that 
where  it  appeared  that  the  parties  arrested  for  being  un- 
lawfully here  were  not  citizens  or  subjects  of  British 
Columbia — the  entry  having  been  made  across  the  Can- 
adian border — they  should  be  deported  to  China.83  Un- 
intentional entry  by  a Chinese  person  into  this  country 
from  contiguous  territory  has  been  held,  however,  not  to 
afford  reason  for  a literal  application  of  the  provision. 
Thus,  where  a Chinaman’s  entry  across  the  Mexican  border 
was  shown  to  have  been  unaccompanied  by  the  intention 
to  violate  the  exclusion  acts  it  seems  that  the  court  would 
have  discretion  to  permit  his  return  to  Mexico.84  In  con- 
nection with  this  subject  see  what  has  been  said  regarding 
the  deportation  of  Chinese  arrested  under  the  immigration 
la’A  after  surreptitious  entry.85 

82United  States  v.  Ah  Toy,  47  Fed.  305. 

83United  States  v.  Lee  Kee  et  al.,  116  Fed.  612. 

8*Yee  Yee  Chung  v.  United  States,  95  Fed.  432. 

85p.  672,  infra. 


/ 


APPENDIX 


Appendix  A. 


085 


APPENDIX  A 

SOME  FOREIGN  LAWS  REGARDING  THE  EXCLUSION 
AND  EXPULSION  OF  ALIENS 

ARGENTINE  REPUBLIC. 

(Summary) 

To  a Department  of  Immigration  with  its  adjuncts  is  com- 
mitted the  administration  of  immigration  laws.  The  chief  du- 
ties prescribed  are  to  promote  publicity  of  natural  resources; 
induce  desirable  immigration;  prohibit  vicious  immigration; 
protect  the  rights  and  interests  of  immigrants;  contract  for 
passage  at  public  expense;  regulate  vessels  transporting  immi- 
grants; and  organize  an  efficient  system  to  settle  and  develop 
unoccupied  lands. 

Special  agents  are  stationed  in  the  populous  countries  of 
Europe  and  America  to  represent  the  government.  They  super- 
vise the  selection  and  restriction  of  immigrants. 

Immigration  commissions  are  established  in  the  ports  of  entry 
of  the  Republic  to  direct  the  admission  and  location  of  immi- 
grants. 

A labor  bureau  is  conducted  to  provide  work  for  the  unem- 
ployed. 

Immigrants. 

The  term  ‘ 4 immigrant,  ’ ’ includes  every  foreign  laborer,  mecha- 
nic, artisan,  farmer  or  other  worker  of  aptitude  and  morality 
under  60  years  of  age,  arriving  in  the  Republic  by  sea  with 
the  intention  to  remain,  having  paid  his  own  passage  of  the  second 
or  third  class,  or  whose  expenses  are  paid  from  private  or  public 
funds. 

Immigrants  of  approved  character,  conduct  and  efficiency  may 
be  maintained  at  the  expense  of  the  state  for  five  days  after 
arrival;  during  grave  illness;  or  until  sent  to  their  destination 
when  enlisted  by  the  state  for  the  colonies.  They  may  select  the 


686 


Appendix  A. 


most  suitable  occupation ; be  transferred  at  state  expense  to  their 
destination;  and  be  furnished  certain  equipment  and  supplies. 
Certificates  of  character  and  conduct  issued  by  officials  of  the 
immigrant’s  country  or  by  representatives  of  the  Republic  will 
be  accepted  as  evidence  of  approval. 

Passports. 

Piersons  defined  by  law  as  immigrants  who  are  traveling  with 
second  or  third  class  passage  on  sailing  vessels  or  steamships 
should  possess  certificates  of  identity,  nationality,  occupation, 
and  civil  status  from  some  official  of  the  cuntry  of  their  alle- 
giance or  a consul  of  the  Republic. 

Prohibitions. 

Captains  of  vessels  carrying  immigrants  are  prohibited  from 
accepting  passengers  intending  to  embark  for  Argentina  from 
any  place  where  Asiatic  cholera,  yellow  fever  or  any  other  epi- 
demic prevails.  They  are  also  prohibited  from  transporting  to 
the  state  any  person  afflicted  with  a contagious  disease ; any  per- 
son suffering  from  an  organic  defect  that  would  incapacitate 
for  labor ; any  person  over  60  years  old  unless  the  head  of  a fam- 
ily; any  insane  person,  beggar,  convict  or  criminal  under  prose- 
cution. The  vessels  are  subject  to  a penalty  of  reconveying  each 
person  to  the  port  of  embarkation  without  pay  in  addition  to  a 
fine. 

Law  of  Residence  of  November  22,  1902. 

In  Article  1 it  is  provided  that  the  executive  shall  have  the 
power  to  order  the  expulsion  from  the  territory  of  the  Nation 
any  immigrant  who  shall  have  been  convicted  or  who  is  sought 
by  a foreign  tribunal  on  the  ground  of  having  committed  a 
criminal  offence. 

Article  2 provides  that  any  person  who  by  his  acts  shall  com- 
promise the  national  safety  or  public  order  is  likewise  subject 
to  expulsion  from  the  State. 

Article  3 authorizes  the  administrative  authorities  to  . prohibit 
the  entrance  into  the  Republic  of  every  foreigner  whose  personal 
record  is  such  as  to  give  reasonable  cause  to  believe  that  he  comes 
within  the  prohibitions  of  the  preceding  articles. 


Appendix  A. 


687 


Article  4 provides  that  a foreigner  against  whom  an  order  of 
expulsion  has  issued  shall  have  a period  of  three  days  within 
which  to  leave  the  Argentine  Republic  and  empowers  the  execu- 
tive to  order  his  detention  until  the  moment  of  his  departure 
should  the  public  safety  require  it. 

AUSTRALIA. 

No.  17  of  1901. 

An  act  to  place  certain  restrictions  on  Immigration  and  to 
provide  for  the  removal  from  the  Commonwealth  of  prohibited 
Immigrants.  (Assented  to  23rd  December,  1901.) 

Be  it  enacted  by  the  King's  Most  Excellent  Majesty,  the 
Senate  and  the  House  of  Representatives  of  the  Commonwealth 
of  Australia  as  follows: 

1.  This  Act  may  be  cited  as  the  Immigration  Restriction  Act 
of  1901. 

2.  In  this  Act,  unless  the  contrary  intention  appears,  “Offi- 
cer ’ ’ means  any  officer  appointed  under  this  Act,  or  any  Officer  of 
Customs;  the  “Minister”  means  the  Minister  for  External  Af- 
fairs. 

3.  The  immigration  into  the  Commonwealth  of  the  persons 
described  in  any  of  the  following  paragraphs  of  this  section 
(hereinafter  called  “prohibited  immigrants”)  is  prohibited, 
namely : 

(a)  Any  person  who  when  asked  to  do  so  by  an  officer  fails 
to  write  out  at  dictation  and  sign  in  the  presence  of  the  officer 
a passage  of  fifty  words  in  length  in  an  European  language  di- 
rected by  the  officer; 

(b)  Any  person  likely  in  the  opinion  of  the  Minister  or  of 
an  officer  to  become  a charge  upon  the  public  or  upon  any  public 
or  charitable  institution; 

(c)  An  idiot  or  insane  person; 

(d)  Any  person  suffering  from  an  infectious  or  contagious 
disease  of  a loathsome  or  dangerous  character; 

(e)  Any  person  who  has  within  three  years  been  convicted 
of  an  offence,  not  being  a political  offence,  and  has  been  sen- 
tenced to  imprisonment  for  one  year  or  longer  therefor,  and  has 
not  received  a pardon; 


688 


Appendix  A. 


(f)  Any  prostitute  or  person  living  on  the  prostitution  of 
others ; 

(g)  Any  person  under  a contract  or  agreement  to  perform 
manual  labor  within  the  Commonwealth : Provided  that  this  para- 
graph shall  not  apply  to  workmen  exempted  by  the  Minister  for 
special  skill  required  in  Australia  or  to  persons  under  contract 
or  agreement  to  serve  as  part  of  the  crew  of  a vessel  engaged  in 
the  coasting  trade  in  Australian  waters  if  the  rates  of  wages 
specified  therein  are  not  lower  than  the  rates  ruling  in  the  Com- 
monwealth. 

But  the  following  are  excepted: 

(h)  Any  person  possessed  of  a certificate  of  exemption  in 
force  for  the  time  being  in  the  form  in  the  Schedule,  signed  by 
the  Minister  or  by  any  officer  appointed  under  this  Act  whether 
within  or  without  the  Commonwealth; 

(i)  Members  of  the  King’s  regular  land  or  sea  forces; 

(j)  The  master  and  crew  of  any  public  vessel  of  any  Gov- 
ernment ; 

(k)  The  master  and  crew  of  any  other  vessel  landing  during 
the  stay  of  the  vessel  in  any  port  in  the  Commonwealth ; Provided 
that  the  master  shall  upon  being  so  required  by  any  officer,  and 
before  being  permitted  to  clear  out  from  or  leave  the  port,  mus- 
ter the  crew  in  the  presence  of  an  officer;  and  if  it  is  found  that 
any  person,  who  according  to  the  vessel’s  articles  was  one  of  the 
crew  when  she  arrived  at  the  port,  and  who  would  in  the  opinion 
of  the  officer  be  a prohibited  immigrant  but  for  the  exception 
contained  in  this  paragraph,  is  not  present,  then  such  person 
shall  not  be  excepted  by  this  paragraph,  and  until  the  contrary 
is  shown,  shall  be  deemed  to  be  a prohibited  immigrant  and  to 
have  entered  the  Commonwealth  contrary  to  this  Act; 

(l)  Any  person  duly  accredited  to  the  Government  of  the 
Commonwealth  by  the  Imperial  or  any  other  Government  or  sent 
by  any  Government  on  any  special  mission ; 

(m)  A wife  accompanying  her  husband  if  he  is  not  a pro- 
hibited immigrant,  and  all  children  appaiently  under  the  age  of 
eighteen  years  accompanying  their  father  or  mother,  if  the  father 
or  mother  is  not  a prohibited  immigrant;  but  so  that  the  excep- 
tions in  this  paragraph  shall  not  apply  if  suspended  by  procla- 


Appendix  A. 


689 


mation;  and  such  suspension  may  be  of  general  application  or 
limited  to  any  cases  or  class  of  cases ; 

(n)  Any  person  who  satisfies  an  officer  that  he  has  formerly 
been  domiciled  in  the  Commonwealth  or  in  any  colony  which  has 
become  a State. 

4.  A certificate  of  exemption  shall  be  expressed  to  be  in  force 
for  a specified  period  only,  and  may  at  any  time  be  cancelled  by 
the  Minister  by  writing  under  his  hand. 

Upon  the  expiration  or  cancellation  of  any  such  certificate,  the 
person  named  therein  may,  if  found  within  the  Commonwealth, 
be  treated  as  a prohibited  immigrant  offending  against  this  Act : 

Provided  that  in  the  case  of  a person  entering  the  Common* 
wealth  from  any  vessel  under  this  section  no  penalty  shall  attach 
to  the  vessel  or  its  master,  owners  or  charterers. 

5.  (1)  Any  immigrant  who  evades  an  officer  or  who  enters 
the  Commonwealth  at  any  place  where  no  officer  is  stationed  may, 
if  at  any  time  thereafter  he  is  found  within  the  Commonwealth, 
be  asked  to  comply  with  the  requirements  of  paragraph  (a)  of 
section  three,  and  shall  if  he  fail  to  do  so  be  deemed  to  be  a 
prohibited  immigrant  offending  against  this  Act. 

(2)  Any  immigrant  may  at  any  time  within  one  year  after 
he  has  entered  the  Commonwealth  be  asked  to  comply  with  the 
requirements  of  paragraph  (a)  of  section  three,  and  shall  if  he 
fail  to  do  so  be  deemed  to  be  a prohibited  immigrant  offending 
against  this  Act. 

6.  Any  prohibited  immigrant  within  the  meaning  of  para- 
graph (a)  only  of  section  three,  may,  if  thought  fit  by  an  officer, 
be  allowed  to  enter  the  Commonwealth,  or  to  remain  within  the 
Commonwealth  upon  the  following  conditions: 

(a)  He  shall  on  entering  the  Commonwealth,  or  on  failing  to 
comply  with  the  requirements  of  that  paragraph,  deposit  with  an 
officer  the  sum  of  One  hundred  pounds. 

(b)  He  shall  within  thirty  days  after  depositing  such  sum 
obtain  from  the  Minister  a certificate  of  exemption  in  the  form 
of  the  Schedule,  or  depart  from  the  Commonwealth,  and  there- 
upon the  deposit  shall  be  returned ; but  otherwise  the  deposit  or 
any  part  thereof  may  be  forfeited  and  he  may  be  treated  as  a 
prohibited  immigrant  offending  against  this  Act. 

Provided  that  in  the  case  of  a person  entering  the  Common- 


690 


Appendix  A. 


wealth  from  any  vessel  under  this  section  no  penalty  shall  attach 
to  the  vessel  or  its  master,  owners  or  charterers. 

7.  Every  prohibited  immigrant  entering  or  found  within 
the  Commonwealth  in  contravention  or  evasion  of  this  Act  shall 
be  guilty  of  an  offence  against  this  Act,  and  shall  be  liable  upon 
summary  conviction  to  imprisonment  for  not  more  than  six 
months,  and  in  addition  to  or  substitution  for  such  imprisonment 
shall  be  liable  pursuant  to  any  order  of  the  Minister  to  be  de- 
ported from  the  Commonwealth. 

Provided  that  the  imprisonment  shall  cease  for  the  purpose 
of  deportation,  or  if  the  offender  finds  two  approved  sureties 
each  in  the  sum  of  Fifty  pounds  for  his  leaving  the  Common- 
wealth within  one  month. 

8.  Any  person  who  is  not  a British  subject  either  natural- 
born  or  naturalized  under  a law  of  the  United  Kingdom  or  of 
the  Commonwealth  or  of  a State,  and  who  is  convicted  of  any 
crime  of  violence  against  the  person,  shall  be  liable,  upon  the 
expiration  of  any  term  of  imprisonment  imposed  on  him  there- 
for, to  be  required  to  write  out  at  dictation  and  sign  in  the  pres- 
ence of  an  officer  a passage  of  fifty  words  in  length  in  an  Euro- 
pean language  directed  by  the  officer,  and  if  he  fails  to  do  so  shall 
be  deeemed  to  be  a prohibited  immigrant  and  shall  be  deported 
from  the  Commonwealth  pursuant  to  any  order  of  the  Minister. 

9.  The  master,  owners  and  charterers  of  any  vessel  from 
which  any  prohibited  immigrant  enters  the  Commonwealth  con- 
trary to  this  Act  shall  be  jointly  and  severally  liable  to  a penalty 
not  exceeding  One  hundred  pounds  for  each  immigrant  so  en- 
tering the  Commonwealth. 

Provided  that  in  the  case  of  an  immigrant  of  European  race 
or  descent  no  penalty  shall  be  imposed  under  this  section  on  any 
master,  owner  or  charterer  who  proves  to  the  satisfaction  of  the 
Court  that  he  had  no  knowledge  of  the  immigrant  being  landed 
contrary  to  this  Act,  and  that  he  took  all  possible  precautions 
to  prevent  it. 

10.  (1)  The  Minister,  or  any  Collector  of  Customs  specially 
empowered  by  him,  may  by  writing  under  his  hand  authorize 
any  officer  to  detain  any  vessel  from  which  any  prohibited  immi- 
grant has,  in  the  opinion  of  the  officer,  entered  the  Common- 
wealth contrary  to  this  Act ; and  the  vessel  may  then  be  detained 
at  the  place  where  she  is  found,  or  at  any  place  to  which  the 


Appendix  A. 


691 


Minister  or  Collector  may  order  her  to  be  brought.  The  Minister 
or  such  Collector  shall  forthwith  give  notice  to  the  owner  or 
agent  of  the  vessel  of  the  detention  of  such  vessel. 

(2)  For  the  purposes  of  the  detention  and  other  lawful  deal- 
ing with  the  vessel  the  officer  so  authorized  shall  be  entitled  to 
obtain  such  writ  of  assistance  or  other  aid  as  is  provided  under 
any  law  relating  to  the  Customs  with  respect  to  the  seizure  of 
vessels  or  goods. 

(3)  The  detention  shall  be  for  safe  custody  only,  and  shall 
cease  if  a bond  with  two  sufficient  sureties  to  the  satisfaction  of 
the  Minister  or  the  collector  be  given  by  the  master,  owners  or 
charterers  of  the  vessel  for  the  payment  of  any  penalty  which 
may  be  adjudged  under  this  Act  to  be  paid  for  the  offence  or 
default. 

(4)  If  default  is  made  in  payment  of  any  such  penalty,  the 
officer  may  seize  the  vessel ; and  the  like  proceedings  shall  there- 
upon be  taken  for  forfeiting  and  condemning  the  vessel  as  in  the 
case  of  a vessel  seized  for  breach  of  any  law  relating  to  the  Cus- 
toms, and  the  vessel  shall  be  sold. 

(5)  The  proceeds  of  the  sale  shall  be  applied  first  in  pay- 
ment of  the  penalty  and  of  all  costs  incurred  in  and  about  the 
sale  and  the  proceedings  leading  thereto,  and  the  balance  shall 
be  paid  to  the  owners  of  or  other  persons  lawfully  entitled  to 
the  vessel  before  condemnation  and  sale. 

11.  No  contract  or  agreement  made  with  persons  without  the 
Commonwealth  for  such  persons  to  perform  manual  labor  within 
the  Commonwealth  whereby  such  persons  become  prohibited  im- 
migrants within  the  meaning  of  paragraph  (g)  of  section  three 
shall  be  enforceable  or  have  any  effect. 

12.  (1)  Any  person  who  in  any  way  wilfully  assists  any 
other  person  to  contravene  or  attempt  to  contravene  any  of  the 
provisions  of  this  Act,  or  makes  or  authorizes  any  contract  or 
agreement  the  performance  of  which  would  be  a contravention 
of  this  Act,  shall  be  guilty  of  an  offence  against  this  Act. 

(2)  Any  person  who  makes  or  authorizes  such  contract  or 
agreement  shall  be  liable  to  the  Commonwealth  for  any  expense 
incurred  by  the  Commonwealth  in  respect  of  any  immigrant 
prohibited  by  reason  of  the  contract  or  agreement. 

13.  Any  person  who  is  unlawfully  instrumental  in  bringing  or 
attempting  to  bring  into  the  Commonwealth  any  idiot  or  insane 


692 


Appendix  A. 


person,  contrary  to  this  Act,  shall,  in  addition  to  any  other  pen- 
alty, be  liable  to  the  Commonwealth  for  any  expense  in  respect 
of  the  maintenance  of  the  idiot  or  insane  person  whilst  within 
the  Commonwealth. 

14.  Every  member  of  the  police  force  of  any  State,  and  every 
officer,  may  with  any  necessary  assistance  prevent  any  prohibited 
immigrant,  or  person  reasonably  supposed  to  be  a prohibited  im- 
migrant, from  entering  the  Commonwealth,  and  may  take  all 
legal  proceedings  necessary  for  the  enforcement  of  this  Act. 

15.  Subject  to  any  Act  relating  to  the  public  service,  the 
Governor-General  may  appoint  officers  for  carrying  out  this  Act, 
and  may  prescribe  their  duties. 

16.  (1)  The  Governor-General  may  make  regulations  for 
carrying  out  this  Act  and  for  empowering  officers  to  determine 
whether  any  person  is  a prohibited  immigrant. 

(2)  All  such  regulations  shall  be  notified  in  the  Gazette,  and 
shall  thereupon  have  the  force  of  law. 

(3)  All  such  regulations  shall  be  laid  before  both  Houses 
of  the  Parliament  within  thirty  days  after  the  making  thereof  if 
the  Parliament  be  then  sitting,  and  if  not  then  within  thirty 
days  after  the  next  meeting  of  the  Parliament. 

17.  The  Minister  shall  cause  to  be  made  annually  a return 
which  shall  be  laid  before  Parliament,  showing  the  number  of 
persons  refused  admission  into  the  Commonwealth  on  the  ground 
of  being  prohibited  immigrants,  the  nations  to  which  they  belong 
and  whence  they  came,  and  the  grounds  on  which  admission  was 
refused ; the  number  of  persons  who  passed  the  test  prescribed  by 
paragraph  (a)  of  section  three,  the  nations  to  which  they  belong 
and  whence  they  came,  the  number  of  persons  admitted  to  the 
Commonwealth  without  being  asked  to  pass  the  test,  the  nations 
to  which  they  belong  and  whence  they  came. 

18.  Where  no  higher  penalty  is  expressly  imposed,  a person 
guilty  of  any  offence  against  this  Act,  or  against  any  regulation 
made  thereunder,  shall  be  liable  on  summary  conviction  to  a 
penalty  not  exceeding  Fifty  pounds,  and  in  default  of  payment 
to  imprisonment  with  or  without  hard  labor  for  any  period  not 
exceeding  three  months. 

19.  This  Act  shall  not  apply  to  the  immigration  of  Pacific 
Island  labourers  under  the  provisions  of  the  Pacific  Island 
Labourers  Acts,  1880-1892,  of  the  State  of  Queensland. 


Appendix  A. 


693 


BARBADOES. 

Summary. 

The  restrictions  imposed  upon  the  admission  of  immigrants 
into  the  Barbadoes  are  directed  against  paupers  whose  presence 
would  be  burdensome  to  the  public. 

The  laws  provide  that  any  immigrant,  traveling  as  a second  or 
third  class  passenger,  shall  be  prohibited  from  entering  when,  by 
reason  of  physical  or  mental  infirmity,  he  is  unable  to  maintain 
himself  or  is  likely  to  become  an  object  of  charity.  And  any  per- 
son found  traveling  as  a first  class  passenger  to  evade  the  spirit 
of  the  law  will  be  subject  to  this  prohibition.  But  if  a respon- 
sible resident  of  the  Colony  will  give  bond  to  indemnify  the  gov- 
ernment for  any  expense  incurred  within  five  years  in  behalf  of 
the  immigrant,  he  may  be  admitted. 

BELGIUM. 

Law  of  February  12,  1897. 1 

Article  1.  The  foreigner  residing  in  Belgium  who,  by  his  con- 
duct, shall  compromise  the  public  safety,  or  the  foreigner  who  is 
a fugitive  from  justice,  or  who  has  been  convicted  in  a foreign 
country  for  crimes  or  felonies  for  the  commission  of  which  he 
may  be  extradited,  shall  be  under  the  obligation,  when  ordered 
to  do  so  by  the  Government,  to  leave  any  designated  locality,  to 
take  up  his  abode  at  a given  place,  or  even  to  leave  the  Kingdom. 

The  Royal  order  commanding  a foreigner  to  leave  the  King- 
dom because  he  has  compromised  the  public  safety  shall  be  the 
result  of  action  taken  by  the  Council  of  Ministers. 

Article  II.  The  provisions  of  the  preceding  article  shall  not 
be  applicable  to  the  following  classes  of  aliens  provided  that  the 
nation  to  which  they  belong  is  at  peace  with  Belgium: 

(1)  An  alien  domiciled  in  the  Kingdom  in  accordance  with 
law; 

(2)  An  alien  who  has  married  a Belgian  woman  by  whom  he 
has  had  one  or  more  children  born  in  Belgium  during  his  resid- 
ence in  the  country; 

1 Annuaire  de  Legislation,  t,  27,  annee  1898,  p.  514. 


694 


Appendix  A. 


(3)  The  alien  who,  being  married  to  a Belgian  woman,  shall 
have  established  his  residence  in  Belguim  for  more  than  five 
years  and  shall  have  continued  to  reside  there  permanently ; 

(4)  A person  of  foreign  parentage  born  in  Belgium  and  re- 
siding therein  who  has  not  yet  exercised  the  option  prescribed  by 
Article  9 of  the  Civil  Code.2 

Article  III.  The  Royal  order  issued  under  the  authority  of 
Article  I shall  be  communicated  by  the  marshall  to  the  foreigner 
who  is  the  object  thereof. 

An  alien  shall  be  granted  a delay  of  at  least  one  day  after 
receipt  thereof. 

Article  IV.  A foreigner  who  shall  have  received  an  order  to 
leave  the  Kingdom  shall  be  under  the  obligation  of  designating 
the  frontier  at  which  he  intends  to  depart;  he  shall  receive  an 
itinerary  setting  out  the  route  he  shall  take  and  the  length  of 
his  stay  at  each  place  through  which  he  must  pass  in  the  course 
of  his  journey.  In  case  either  of  these  provisions  are  avoided  by 
him  he  shall  be  conducted  beyond  the  limits  of  the  Kingdom  by 
the  public  authorities. 

Article  V.  The  Government  shall  have  the  power  to  order  a 
foreigner,  who  shall  have  left  the  place  of  residence  which  has 
been  assigned  to  him,  to  leave  the  country. 

Article  VI.  If  an  alien  who  has  been  ordered  to  leave  the 
Kingdom  shall  again  come  within  its  territorial  limits,  he  shall 
be  taken  into  custody  and  shall  be  sentenced  to  an  imprisonment 
of  from  fifteen  days  to  six  months;  and  at  the  end  of  his  sen- 
tence he  shall  be  conducted  to  the  frontier. 

Article  VII.  Regular  reports  of  the  operation  and  execution 
of  the  present  law  shall  be  made  each  year  to  the  Chambers. 

Article  VIII.  Orders  of  expulsion  issued  under  prior  laws 
shall  be  given  full  force  and  effect. 


BERMUDA. 

Summary. 

Rigid  restrictions  are  imposed  upon  immigration  by  the  govern- 
ment of  the  Bermudas  in  order  to  safeguard  the  general  welfare 
and  maintain  a high  standard  of  citizenship.  Every  immigrant 
seeking  admission  is  required  to  present  a health  certificate  issued 
2 Same  as  Article  9 of  the  French  Civil  Code. 


Appendix  A. 


695 


within  ten  days  of  embarkation  by  a qualified,  medical  officer  of  his 
country ; to  produce  a certificate  of  character  attested  by  a compe- 
tent officer  of  his  country ; and  to  deposit  the  sum  of  ten  pounds 
or  give  bond  for  twenty  pounds,  signed  by  two  responsible  sureties 
to  indemnify  the  government  for  any  expense  it  may  incur  in  his 
behalf  by  reason  of  delinquency,  or  disability.  The  bond  stipu- 
lates also  that  he  shall  leave  the  Islands  if  at  any  time  ordered 
or  required.  If  he  leaves  within  three  years  the  deposit  will  be 
refunded. 

The  Immigration  Officer  has  discretionary  power  to  permit  any 
person  to  land  and  remain  who  will  execute  a bond  for  fifty 
pounds.  If  the  person  under  bond  within  three  years  after  ar- 
rival becomes  an  inmate  of  a public  prison,  insane  asylum,  or 
charitable  institution,  the  government  shall  be  indemnified  for  all 
expense  involved  by  taking  summary  legal  action  on  the  bond. 

Expulsion. 

Any  immigrant  may  be  ordered  to  leave  the  Islands  who, 
within  three  years  after  arrival,  is  imprisoned  for  any  penal  or 
criminal  offense,  becomes  an  inmate  of  any  insane  asylum  or  a 
charge  upon  the  public;  or  develops  any  loathsome,  dangerous, 
infectious,  or  contagious  disease.  The  government  will  designate 
the  time  and  conditions  of  departure  for  the  place  of  original 
embarkation  or  any  other  port  to  which  the  immigrant  may  con- 
sent to  go. 

BRAZIL. 

Law  of  January  7 , 1907. 1 

Article  1.  The  foreigner  who,  for  any  reason  whatsoever, 
shall  compromise  the  public  safety  or  tranquility  may  be  ex- 
pelled from  the  territorial  limits  of  the  nation  or  from  any  part 
thereof. 

Article  2.  The  following  shall  likewise  constitute  sufficient 
cause  for  expulsion:  (1)  A sentence  or  a prosecution  by  foreign 
courts  for  the  commission  of  a crime  or  penalty  violative  of  the 
common  law;  (2)  at  least  two  convictions  by  Brazilian  tribunals 
of  having  committed  crimes  or  felonies  in  violation  of  the  com- 

1 Revue  de  droit  international  prive,  1908  p.  855 — Journal  du  droit  inter- 
national prive,  1907,  p.  1217. 


696 


Appendix  A. 


mon  law;  (3)  vagabondage,  vagrancy,  and  procuration  after  due 
proof  thereof. 

Article  3.  An  alien  is  not  subject  to  expulsion  if  he  has  re- 
sided within  the  territory  of  the  republic  for  two  continuous 
years  or  even  for  a lesser  period,  if  besides  being  such  resident 
he  is  (a)  married  to  a Brazilian  woman,  (b)  or  a widower  with 
a Brazilian  child. 

Article  4.  The  executive  power  may  forbid  access  to  the  ter- 
ritory of  the  Republic  to  any  foreigner  who,  after  examination, 
is  found  to  be  one  of  those  mentioned  in  Articles  1 and  2. 

Entrance  into  the  territory  cannot  be  denied  a foreigner  com- 
ing within  Article  3 if  he  has  absented  himself  therefrom  for 
temporary  purposes. 

Article  5.  Expulsion  shall  be  a separate  proceeding  and  shall 
take  the  form  of  an  order  issued  by  the  minister  of  justice  and 
internal  affairs. 

# * # * * 

Article  7.  The  executive  power  will,  by  means  of  official  com- 
munication, give  notice  to  the  foreigner  whom  it  has  decided  to 
expel,  of  the  grounds  of  its  decision,  and  grant  him  a period 
of  from  three  to  thirty  days  during  which  he  shall  leave  the 
territory;  or,  should  the  public  safety  demand  it,  it  may  order 
him  to  be  detained  up  to  the  moment  of  his  departure. 

Article  8.  Pending  the  delay  which  has  been  granted,  the  for- 
eigner may  take  an  appeal  to  the  branch  which  has  ordered  his 
expulsion  if  the  latter  is  based  on  the  provisions  of  article  1,  or 
to  the  federal  judicial  power  if  he  has  been  proceeded  against 
under  the  provisions  of  Article  2.  Only  in  the  latter  case  shall 
the  appeal  operate  to  suspend  his  expulsion. 

The  appeal  to  the  federal  judicial  power  shall  be  based  on  the 
ground  that  the  cause  alleged  is  without  foundation;  it  shall  be 
taken  to  the  judge  of  the  district  (juizo  seccional).  It  is  un- 
derstood that  the  State  shall  be  a party  to  the  proceeding. 

Article  9.  The  foreigner  who  shall  return  to  the  territory 
whence  he  has  been  expelled  shall  be  punished  by  imprisonment 
of  from  one  to  three  years  duration  after  regular  proceedings 
had  before  the  district  judge  and,  on  the  expiration  of  the  sen- 
tence, he  shall  be  again  expelled. 


Appendix  A. 


697 


Article  10.  The  executive  power  may  revoke  an  order  of 
expulsion  if  the  reasons  on  which  it  was  based  shall  have  ceased 
to  exist. 

Article  11.  All  laws  in  conflict  with  the  present  decree  are 
hereby  repealed. 

CANADA. 

Chinese  Immigration  Act. 

1.  The  short  title  of  the  Act  Respecting  and  Restricting 
Chinese  Immigration  as  defined  is  the  Chinese  Immigration  Act. 

2.  The  interpretation  clauses  stipulated  in  the  Act  are  as 
follows : 

(a)  ‘Chief  Controller’  means  the  chief  Controller  of 
Chinese  Immigration  who  shall  have  authority  over  officers 
of  Customs  and  others  appointed  for  the  purpose  or  charged 
with  the  duty  of  assisting  in  carrying  out  the  provisions  of 
the  Act; 

(b)  ‘Controller’  means  any  Customs  or  other  officer  at 
any  seaport  or  frontier  Customs  port  duly  appointed  as  such 
and  charged  with  the  duty  of  assisting  in  carrying  the  pro- 
visions of  the  Act  into  effect ; 

(c)  ‘master’  or  ‘conductor’  means  any  person  in  com- 
mand of  or  in  charge  of  any  vessel  or  vehicle; 

(d)  ‘Chinese  immigrant’  means  any  person  of  Chinese 
origin  (including  any  person  whose  father  was  of  Chinese 
origin)  entering  Canada  and  not  entitled  to  the  privilege 
of  exemption  provided  for  by  the  Act; 

(e)  ‘vessel’  means  any  sea-going  craft  of  any  kind  or 
description  capable  of  carrying  passengers; 

(f)  ‘tonnage’  means  the  gross  tonnage  according  to  the 
measurement  fixed  by  the  Merchant  Shipping  Acts  of  the 
Parliament  of  the  United  Kingdom ; 

(g)  ‘vehicle’  means  any  ferry  boat,  boat,  railway  car, 
cart,  wagon,  carriage,  sleigh  or  other  conveyance  whatsoever, 
however  propelled  or  drawn. 

(h)  ‘Minister’  means  the  Minister  of  Trade  and  Com- 
merce. 

3.  Any  woman  of  Chinese  origin  who  is  the  wife  of  a person 
who  is  not  of  Chinese  origin  shall  for  the  purpose  of  the  Act  be 


698 


Appendix  A. 


deemed  to  be  of  the  same  nationality  as  her  husband,  and  the  chil- 
dren of  the  said  wife  and  husband  shall  be  deemed  to  be  the  same 
nationality  as  the  father. 

4.  ‘Merchant'  as  used  in  the  Act,  shall  not  include  any 
merchant's  clerk,  or  other  employee,  mechanic,  huckster,  pedlar, 
or  person  engaged  in  taking,  drying  or  otherwise  preserving  fish 
for  home  consumption  or  other  exportation. 

5.  Except  as  otherwise  required  by  the  Quarantine  Act,  the 
landing  of  a person  of  Chinese  origin  from  a vessel,  wherever  re- 
ferred to  in  the  Act,  shall  not  be  held  to  apply  to  the  landing  of 
such  person  on  the  wharf  and  the  placing  of  him  in  a proper 
building,  where  he  may  remain  until  the  provisions  of  the  Act 
have  been  complied  with  and  the  controller  has  given  his  authority 
for  his  departure  therefrom,  or  to  the  temporary  landing  of  any 
Chinese  sailor  for  the  purpose  of  assisting  in  the  lading  or  unlad- 
ing of  the  vessel  to  which  he  belongs,  or  for  the  purpose  of  his 
transfer  to  another  vessel,  and  such  person  or  sailor,  while  in  such 
building  or  while  so  employed  or  waiting  such  transfer,  shall, 
for  the  purposes  of  the  Act,  be  held  to  be  on  board  the  vessel  by 
which  he  arrived. 

Administration. 

6.  The  Governor  in  Council  may, — 

(a)  appoint  one  or  more  persons  to  carry  the  provisions 
of  the  Act  into  effect; 

(b)  assign  any  duty  in  connection  therewith  to  any  officer 
or  person  in  the  employ  of  the  Government  of  Canada; 

(c)  define  and  prescribe  the  duties  of  such  officer  or 
person ; 

(d)  fix  the  salary  or  remuneration  to  be  allowed  to  such 
person  or  officer; 

(e)  engage  and  pay  interpreters  skilled  in  the  English 
and  Chinese  languages,  at  salaries  aggregating  not  more  than 
three  thousand  dollars  a year; 

(f)  make  regulations  for  the  carrying  out  of  the  Act. 

Taxes  and  Exemptions. 

7.  Every  person  of  Chinese  origin,  irrespective  of  allegiance, 
shall  pay  into  the  Consolidated  Revenue  Fund  of  Canada,  on  en- 
tering Canada,  at  the  port  or  place  of  entry,  a tax  of  five  hun- 


Appendix  A.  , 


699 


dred  dollars,  except  the  following  persons  who  shall  be  exempt 
from  such  payment,  that  is  to  say: — 

(a)  The  members  of  the  diplomatic  corps,  or  other  gov- 
ernment representatives,  their  suites  and  their  servants,  and 
consuls  and  consular  agents; 

(b)  The  children  born  in  Canada  of  parents  of  Chinese 
origin  and  who  have  left  Canada  for  educational  or  other 
purposes,  on  substantiating  their  identity  to  the  satisfaction 
of  the  controller  at  the  port  or  place  where  they  seek  to  enter 
on  their  return; 

(c)  (1)  Merchants,  their  wives  and  minor  children; 

(2)  The  wives  and  minor  children  of  clergymen; 

(3)  Tourists; 

(4)  Men  of  science; 

(5)  (Subject  to  such  regulations  as  may  from  time 
to  time  be  made  by  the  Governor  in  Council) 
duly  certified  teachers; 

who  shall  substantiate  their  status  to  the  satisfaction  of  the  con- 
troller, subject  to  the  approval  of  the  Minister,  or  who  are  bear- 
ers of  certificates  of  identity,  or  other  similar  documents  issued 
by  the  Government  or  by  a recognized  official  or  representative 
of  the  Government  whose  subjects  they  are,  specifying  their  oc- 
cupation and  their  object  in  coming  into  Canada. 

2.  Every  such  certificate  or  other  document  shall  be  in  the 
English  or  French  language,  and  shall  be  examined  and  endorsed 
{vise)  by  a British  consul  or  charge  d’affaires  or  other  accredited 
representative  of  His  Majesty,  at  the  place  where  it  is  granted 
or  at  the  port  or  place  of  departure. 

3.  A student  of  Chinese  origin  who  upon  first  entering  Can- 
ada has  substantiated  his  status  as  such  to  the  satisfaction  of  the 
controller  subject  to  the  approval  of  the  Minister,  and  who  is  the 
bearer  of  a certificate  of  identity,  or  other  similar  document  is- 
sued by  the  Government  or  a recognized  official  or  representative 
of  the  Government  whose  subject  he  is,  and  who  at  that  time 
satisfies  the  controller  that  he  is  entering  Canada  for  the  purpose 
of  securing  a higher  education  in  one  of  the  recognized  universi- 
ties, or  in  some  other  educational  institution  approved  by  the 
Governor  in  Council  for  the  purposes  of  this  section,  and  who 
afterwards  furnishes  satisfactory  proof  that  he  has  been  a bona 


700 


Appendix  A. 


fide  student  in  such  university  or  educational  institution  for  a 
period  of  one  year  shall  be  entitled  to  a refund  of  the  tax  paid 
by  him  upon  his  entry  into  Canada. 

4.  Notwithstanding  anything  in  the  Act,  and  subject  to  such 
regulations  as  are  made  for  the  purpose  by  the  Governor  in 
Council,  any  Chinese  immigrant,  whose  destination  is  a place  in 
Canada  other  than  the  port  or  place  at  which  he  enters  Canada, 
may  pass  through  to  his  destination  and  pay  the  tax  hereinbe- 
fore provided  for  only  upon  his  reaching  his  destination. 

8.  The  controller  shall  deliver  to  each  Chinese  immigrant  who 
has  been  permitted  to  land  or  enter,  and  in  respect  of  whom  the 
tax  has  been  paid  as  hereinbefore  provided,  a certificate  con- 
taining a description  of  such  individual,  the  date  of  his  arrival, 
the  name  of  the  port  of  his  landing  and  an  acknowledgment  that 
the  tax  has  been  duly  paid;  and  such  certificate  shall  be  prima 
facie  evidence  that  the  person  presenting  it  has  complied  with 
the  requirements  of  the  Act;  but  such  certificate  may  be  con- 
tested by  His  Majesty  or  by  any  officer  charged  with  the  duty 
of  carrying  the  Act  into  effect,  if  there  is  reason  to  doubt  the 
validity  or  authenticity  thereof,  or  of  any  statement  therein 
contained;  and  such  contestation  shall  be  heard  and  determined 
in  a summary  manner  by  any  judge  of  a superior  court  of  any 
province  of  Canada,  where  such  certificate  is  produced. 

Number  of  Immigrants  Limited. 

9.  No  vessel  carrying  Chinese  immigrants  to  any  port  in 
Canada  shall  carry  more  than  one  such  immigrant  for  every  fifty 
tons  of  its  tonnage. 

10.  No  Chinese  immigrants  shall  be  allowed  to  land  in  or 
enter  Canada  coastwise  or  overland  arriving  in  transit  from  any 
port  or  place  in  America  from  any  vessel  entering  at  such  port 
or  place,  in  excess  of  the  number  which  would  have  been  allowed 
to  land  from  such  vessel  had  it  come  direct  to  Canada. 

The  Landing  of  Chinese  Immigrants. 

11.  No  master  of  any  vessel  carrying  Chinese  immigrants 
shall  land  any  person  of  Chinese  origin,  or  permit  any  to  land 
from  such  vessel,  until  a permit  so  to  do,  stating  that  the  pro- 
visions of  the  Act  have  been  complied  with,  has  been  granted  to 
the  master  of  such  vessel  by  the  controller. 

12.  No  controller  at  any  port  shall  grant  a permit  allowing 


Appendix  A. 


701 


Chinese  immigrants  to  land  until  the  quarantine  officer  has 
granted  a bill  of  health,  and  has  certified,  after  due  examination, 
that  no  leprosy  or  infectious,  contagious,  loathsome  or  dangerous 
disease  exists  on  board  such  vessel ; and  no  permit  to  land  shall  be 
granted  to  any  Chinese  immigrant  who  is  suffering  from  leprosy 
or  from  any  infectious,  contagious,  loathsome  or  dangerous 
disease. 

13.  Every  conductor  or  other  person  in  charge  of  any  rail- 
way train  or  car  bringing  Chinese  immigrants  into  Canada  shall 
he  personally  liable  to  His  Majesty  for  the  payment  of  the  tax 
of  five  hundred  dollars  imposed  by  the  Act  in  respect  of  any 
immigrant  brought  by  or  on  such  railway  train  or  car,  and  shall, 
unless  such  persons  are  in  transit  through  Canada,  pay  or  cause 
to  be  paid  to  the  controller  the  total  amount  of  the  tax  payable 
by  Chinese  immigrants  so  arriving  by  such  railway  train  or  car, 
and  he  shall  not  allow  any  such  immigrants  to  disembark  from 
such  train  or  car,  until  after  such  tax  has  been  paid. 

14.  Every  conductor  or  other  person  in  charge  of  any  railway 
train  or  car  bringing  Chinese  immigrants  into  Canada  shall,  im- 
mediately on  his  arrival,  deliver  to  the  controller  or  other  officer 
at  the  port  or  place  of  arrival  a report  containing  a complete 
and  accurate  list  of  all  persons  of  Chinese  origin  arriving  by  or 
being  on  board  of  the  railway  train  or  car  of  which  he  is  in 
charge,  and  showing  their  names  in  full,  the  country  and  place 
of  their  birth,  their  occupation  and  last  place  of  domicile ; and  he 
shall  not  allow  any  such  immigrants  to  disembark  from  such 
train  or  car  until  after  such  report  has  been  made. 

15.  Every  master  of  any  vessel  bringing  Chinese  immigrants 
to  any  port  or  place  in  Canada  shall  be  personally  liable  to  His 
Majesty  for  the  payment  of  the  tax  imposed  by  this  Act  in  respect 
of  any  such  immigrant  carried  by  such  vessel,  and  shall  deliver 
to  the  controller,  immediately  on  his  arrival  in  port  and  before 
any  of  his  Chinese  crew  or  passengers  disembark,  a complete  and 
accurate  list  of  his  crew  and  such  passengers,  showing  their 
names  in  full,  the  country  and  place  of  their  birth,  and  the 
occupations  and  last  place  of  domicile  of  each  of  such  immigrant 
passengers. 


702 


Appendix  A. 


Registration  TJpon  Entry. 

16.  Every  Chinese  immigrant  who  enters  Canada  otherwise 
than  by  disembarking  from  any  vessel  or  vehicle,  shall  forthwith 
make  a statement  and  declaration  of  his  entry  to  the  controller 
or  other  proper  officer  at  the  nearest  or  most  convenient  port  or 
place,  and  shall  forthwith  pay  to  such  controller  or  officer  the 
tax  of  five  hundred  dollars  imposed  by  the  Act ; and,  if  the  state- 
ment and  declaration  is  made  to  an  officer  other  than  a controller 
authorized  to  keep  a register,  such  officer  shall  report  the  fact 
and  transmit  the  tax  to  the  Chief  Controller  or  to  the  nearest 
controller  so  authorized,  and  the  controller  shall  make  a record 
thereof  in  his  register  and  issue  the  proper  certificate  of  such 
registration  in  conformity  with  the  provisions  of  the  Act. 

17.  The  Chief  Controller,  and  such  controllers  as  are  by  him 
authorized  so  to  do,  shall  each  keep  a register  of  all  persons  to 
whom  certificates  of  entry  have  been  granted. 

Prohibited  Immigrants. 

18.  No  controller  or  other  officer  charged  with  the  duty  of 
assisting  in  carrying  the  provisions  of  the  Act  into  effect  shall 
grant  a permit  allowing  to  land  from  any  vessel,  nor  shall  any 
conductor  or  other  person  in  charge  of  any  vehicle  bring  into 
Canada,  either  as  an  immigrant  or  as  an  exempt,  or  as  in  transit, 
any  person  of  Chinese  origin  who  is, — 

(a)  a pauper  or  likely  to  become  a public  charge; 

(b)  an  idiot  or  insane; 

(c)  suffering  from  any  loathsome,  infectious  or  contagious 
disease ; 

(d)  a prostitute  or  living  on  the  prostitution  of  others. 

2.  All  such  persons  are  prohibited  from  entering  Canada. 

Chinese  In  Transit. 

19.  Persons  of  Chinese  origin  may  pass  through  Canada  in 
transit,  from  one  port  or  place  out  of  Canada  to  another  port  or 
place  out  of  Canada,  without  payment  of  the  tax  of  five  hundred 
dollars  imposed  by  the  Act : Provided  that  such  passage  is  made 
in  accordance  with,  and  under  such  regulations  as  are  made  for 
the  purpose  by  the  Governor  in  Council. 


Appendix  A. 


703 


Re-Entry. 

20.  Every  person  of  Chinese  origin  who  wishes  to  leave 
Canada,  with  the  declared  intention  of  returning  thereto,  shall 
give  written  notice  of  such  intention  to  the  controller  at  the  port 
or  place  whence  he  proposes  to  sail  or  depart,  in  which  notice 
shall  be  stated  the  foreign  port  or  place  which  such  person 
wishes  to  visit,  and  the  route  he  intends  taking  both  going  and 
returning,  and  such  notice  shall  be  accompanied  by  a fee  of  one 
dollar. 

2.  The  controller  shall  thereupon  enter  in  a register  to  be 
kept  for  the  purpose,  the  name,  residence,  occupation  and  de- 
scription of  the  said  person,  and  such  other  information  re- 
garding him  as  is  deemed  necessary,  under  such  regulations  as 
are  made  for  the  purpose. 

21.  The  person  registered  shall  be  entitled  on  his  return,  if 
within  twelve  months  of  such  registration,  and  on  proof  of  his 
identity  to  the  satisfaction  of  the  controller,  as  to  which  the 
decision  of  the  controller  shall  be  final,  to  free  entry  as  an  ex- 
empt or  to  receive  from  the  controller  the  amount  of  the  tax,  if 
any,  paid  by  him  on  his  return;  but  if  he  does  not  return  to 
Canada  within  twelve  months  from  the  date  of  such  registration, 
he  shall,  if  returning  after  that  date,  be  subject  to  the  tax  of 
five  hundred  dollars  imposed  by  the  Act  in  the  same  manner  as 
in  the  case  of  a first  arrival. 

Penalties  and  Forfeitures. 

22.  The  owner  of  any  vessel  carrying  Chinese  immigrants  to 
any  port  in  Canada  shall  incur  a penalty  of  two  hundred  dollars 
for  each  Chinese  immigrant  therein  carried  in  excess  of  one  for 
every  fifty  tons  of  such  vessel’s  tonnage. 

23.  The  master  of  any  vessel  carrying  Chinese  immigrants 
shall  incur  a penalty  of  five  hundre'd  dollars  if  he  lands  or  per- 
mits to  land  in  Canada  from  such  vessel  any  person  of  Chinese 
origin  without  the  permit  therefor  required  by  the  Act. 

24.  Every  master  or  conductor  of  any  vessel  or  vehicle  who 
lands  or  allows  to  be  landed  off  or  from  any  vessel  or  vehicle  any 
Chinese  immigrant  before  the  tax  payable  under  the  Act  has  been 
duly  paid,  or  who  wilfully  makes  any  false  statement  respecting 
the  number  of  persons  on  board  his  vessel  or  vehicle,  shall,  in 


704 


Appendix  A. 


addition  to  the  amount  of  the  tax  payable  under  the  foregoing 
provisions  of  the  Act,  be  liable  to  a penalty  not  exceeding  one 
thousand  dollars  and  not  less  than  five  hundred  dollars  for  every 
such  offence,  and,  in  default  of  payment,  to  imprisonment  for 
a term  not  exceeding  twelve  months;  and  such  vessel  or  vehicle 
shall  be  forfeited  to  His  Majesty,  and  shall  be  seized  by  an  of- 
ficer charged  with  the  duty  of  carrying  the  Act  into  effect,  and 
dealt  with  accordingly. 

25.  If  any  person  of  Chinese  origin  who  is, — 

(a)  a pauper  or  likely  to  become  a public  charge; 

(b)  an  idiot  or  insane; 

(c)  suffering  from  any  loathsome,  infectious  or  contagious 
disease;  or 

(d)  a prostitute  or  living  on  the  prostitution  of  others;  en- 
ters Canada,  he  or  she  shall  be  liable  to  imprisonment  for  a term 
not  exceeding  six  months,  and  shall  in  addition  be  liable  to  de- 
portation, and  the  master,  conductor  or  other  person  who  know- 
ingly lands  or  brings  or  assists  or  permits  to  land  in  Canada, 
any  such  persons  of  Chinese  origin,  shall  also  be  liable  to  a 
penalty  not  exceeding  two  hundred  dollars,  or  to  imprisonment 
for  a term  not  exceeding  six  months. 

26.  If  any  railway  or  other  transportation  company,  having 
undertaken  to  transport  through  Canada  any  person  of  Chinese 
origin  in  transit,  fails  to  comply  with  any  regulations  of  the 
Governor  in  Council  in  that  behalf,  such  company  shall  be  sub- 
ject to  a penalty  not  exceeding  five  hundred  dollars. 

27.  Every  person  of  Chinese  origin  who — 

(a)  lands  or  attempts  to  land  in  Canada  without  payment 
of  the  tax  payable  under  the  Act;  or — 

(b)  wilfully  evades  or  attempts  to  evade  any  of  the  pro- 
visions of  the  Act  as  respects  the  payment  of  the  tax  by  person- 
ating any  other  individual ; or — 

(c)  wilfully  makes  use  or  attempts  to  make  use  of  any  forged 
or  fraudulent  certificate  or  of  a certificate  issued  to  any  other 
person  for  any  purpose  connected  with  the  act; 

is  guilty  of  an  indictable  offence,  and  liable  to  imprisonment  for 
a term  not  exceeding  twelve  months  or  to  a fine  not  exceeding 
five  hundred  dollars,  or  to  both,  and  shall  also  be  liable  to  de- 
portation. 


Appendix  A. 


705 


2.  Every  person  who  wilfully  aids  and  abets  any  such  per- 
son of  Chinese  origin  in  any  evasion  or  attempt  at  evasion  of  any 
of  the  provisions  of  the  Act,  is  guilty  of  an  indictable  offence 
and  liable  to  imprisonment  for  a term  not  exceeding  five  hundred 
dollars  or  to  both. 

27 A.  In  any  case  where  a person  of  Chinese  origin  is  liable 
to  deportation  under  the  provisions  of  the  Act,  such  person  may 
upon  the  order  of  the  Minister  be  apprehended  without  further 
warrant  by  any  immigration  agent  or  other  government  officer, 
and  may,  by  force  if  necessary,  be  compelled  to  return  to  or  be 
taken  on  board  a vessel  or  railway  car  and  to  leave  Canada. 

2.  Every  immigrant  deported  under  this  section  shall  be 
carried,  by  the  same  transportation  company  or  companies  which 
brought  him  into  Canada,  to  the  port  from  which  he  came  to 
Canada,  without  receiving  the  usual  payment  for  such  carriage. 

3.  In  case  he  was  brought  into  Canada  by  a railway  com- 
pany such  company  shall  similarly  convey  him  or  secure  his 
conveyance  from  the  municipality  or  locality  whence  he  is  to  be 
deported  to  the  country  whence  he  was  brought. 

4.  Every  owner  or  master  of  a vessel  and  every  railway 
company  or  person  who  refuses  to  take  any  such  person  on 
board  such  vessel  or  car  shall  incur  a penalty  not  exceeding  five 
hundred  dollars  for  each  offence:  Provided  however  that  if  the 
owner,  master  or  crew  of  the  vessel,  or  the  officers  and  employees 
of  the  railway  company,  have  not  in  any  way  aided  or  been 
parties  to  the  violation  of  the  law  for  which  such  person  of 
Chinese  origin  is  being  deported,  they  shall  mot  be  obliged  to 
convey  such  person  unless  the  company  is  paid  the  reasonable 
passage  money  or  fare  for  the  transportation  of  such  person. 

28.  Every  person  who  takes  part  in  the  organization  of  any 
sort  of  court  or  tribunal  composed  of  Chinese  persons,  for  the 
hearing  and  determination  of  any  offence  committed  by  a Chinese 
person,  or  in  carrying  on  any  such  organization  or  who  takes 
part  in  any  of  its  proceedings,  or  who  gives  evidence  before  any 
such  court  or  tribunal,  or  assists  in  carrying  into  effect  any  de- 
cision, decree,  or  order  of  any  such  court  or  tribunal,  is  guilty 
of  an  indictable  offence  and  liable  to  imprisonment  for  any  term 
not  exceeding  twelve  months,  or  to  a fine  not  exceeding  five 
hundred  dollars,  or  to  both;  but  nothing  in  this  section  shall  be 
construed  to  prevent  Chinese  persons  from  submitting  any  dif- 


706 


Appendix  A. 


ferences  or  disputes  to  arbitration,  if  such  submission  is  not  con- 
trary to  the  laws  in  force  in  the  province  in  which  such  sub- 
mission is  made. 

29.  Every  person  who  molests,  persecutes  or  hinders  any  of- 
ficer or  person  appointed  to  carry  the  provisions  of  the  Act  into 
effect  is  guilty  of  an  indictable  offence,  and  liable  to  imprison- 
ment for  a term  not  exceeding  twelve  months,  or  to  a fine  not 
exceeding  five  hundred  dollars,  or  to  both. 

30.  Every  person  who  violates  any  provision  of  the  Act  for 
which  no  special  punishment  is  herein  provided,  is  guilty  of  an 
indictable  offence,  and  liable  to  a fine  not  exceeding  five  hundred 
dollars,  or  to  imprisonment  for  a term  not  exceeding  twelve 
months. 


Procedure. 

31.  All  suits  or  actions  for  the  recovery  of  taxes  or  penalties 
under  the  Act,  and  all  prosecutions  for  contraventions  of  the  Act 
which  are  not  herein  declared  to  be  indictable  offences,  shall  be 
tried  before  one  or  more  justices  of  the  peace,  or  before  the  re- 
corder, police  magistrate  or  stipendiary  magistrate  having  juris- 
diction where  the  cause  of  action  arose  or  where  the  offence  was 
committed. 


Appropriation  of  Revenues. 

32.  All  taxes,  pecuniary  penalties,  and  revenues  from  other 
sources  under  the  Act  shall  be  paid  into  and  form  part  of  the 
Consolidated  Revenue  Fund  of  Canada ; but,  subject  to  such  con- 
ditions and  regulations  as  are  prescribed  by  order  of  the  Gover- 
nor in  Council,  one-half  part  of  the  net  proceeds  of  all  such  taxes 
paid  by  Chinese  immigrants  on  entering  Canada  shall,  at  the 
end  of  every  fiscal  year,  be  paid  out  of  such  fund  to  the  province 
wherein  they  were  collected. 

Regulations. 

The  following  regulations  by  Order  in  Council  of  the  27th  day 
of  April,  1910,  based  upon  the  Chinese  Immigration  Act,  are 
attached  hereto  for  general  information: — 


Appendix  A. 


707 


CHINESE  IN  TRANSIT. 

1.  Persons  of  Chinese  origin  in  transit  shall  be  those  persons 
who  enter  Canada, — 

(a)  for  the  purpose  of  passing  in  continuous  journey 
through  Canada  to  a port  of  exit  out  of  Canada ; or 

(b)  for  the  purpose  of  passing  in  continuous  journey  to 
a point  of  destination  in  Canada ; or, 

(c)  who  may  be  detained  at  any  time  while  in  transit 
for  the  purpose  of  investigation  as  to  their  right  to  such 
transit;  or, 

(d)  on  any  vessel  entering  a Canadian  port,  such  Chinese 
being  members  of  the  ship ’s  list  of  officers,  crew  or  other  em- 
ployes; or 

(e)  who  are  subsequently  detained  at  the  port  of  entry 
pending  substantiation  of  status  under  the  exempt  clauses 
of  the  Chinese  Immigration  Act. 

2.  A bond  or  bonds  in  favour  of  His  Majesty  for  such  sum  or 
sums  as  the  Chief  Controller  of  Chinese  Immigration  may  deem 
sufficient  to  cover  the  capitation  tax  or  penalty  provided  for  in 
chapter  95  of  the  Revised  Statutes  of  Canada  of  1906,  and 
amendments  thereto,  shall  be  deposited  with  the  said  Chief  Con- 
troller by  the  transportation  companies  hereinafter  described  in 
section  3 hereof,  carrying  Chinese  in  transit  as  described  in 
section  1 hereof  before  any  of  the  said  persons  of  Chinese  origin 
shall  be  permitted  to  land  in  or  enter  Canada. 

3.  The  transportation  companies  desiring  to  transport  Chinese 
in  transit  and  from  whom  bonds  in  lieu  of  the  payment  of  the 
capitation  tax  shall  be  required,  shall  be, — 

(a)  Any  steamship  company,  railway  or  other  trans- 
portation company,  having  through  transportation  facilities 
between  the  Orient  to  any  port  in  Canada  situate  on  the 
Pacific  coast  and  from  thence  through  Canada  by  railway 
to  another  port  or  place  in  Eastern  Canada. 

(b)  Any  steamship  company  running  a regular  line  of 
steamers  on  the  Pacific  ocean  between  Canada  and  any 
British  or  foreign  port  or  ports. 

4.  In  lieu  of  such  bond  or  bonds  referred  to  in  section  2,  any 


708 


Appendix  A. 


steamship  company,  railway  or  transportation  company  may  de- 
posit with  the  Chief  Controller  or  other  officer  having  control 
at  the  port  of  arrival,  a sum  in  lawful  currency  of  Canada  equal 
to  the  capitation  tax  payable  on  any  or  all  persons  of  Chinese 
origin  in  transit,  such  sum  to  be  held  until  it  be  shown  that  the 
person  or  persons  of  Chinese  origin  so  designated  for  such  trans- 
port have  been  lawfully  passed  out  of  Canada,  whereupon  such 
sum  shall  be  repaid  to  the  company  depositing  the  same. 

5.  In  the  transportation  through  Canada  of  persons  of 
Chinese  origin  the  railway  or  other  transportation  company 
which  undertakes  such  transport  shall  strictly  conform  to  the 
following  regulations  or  requirements: — 

(a)  Such  persons  of  Chinese  origin  must  be  reported  in- 
wards in  the  manner  required  by  the  Chinese  Immigration 
Act. 

(b)  They  must  be  manifested  forward  to  the  intended 
port  of  exit  in  the  usual  manner.  Such  port  of  exit  must  be 
one  of  the  following  ports  and  no  other,  that  is  to  say  : 

Victoria  and  Vancouver,  in  the  Province  of  British 
Columbia. 

St.  John  in  the  Province  of  New  Brunswick. 

Halifax  and  North  Sydney  in  the  Province  of  Nova 
Scotia. 

And  during  the  season  of  open  navigation  on  the 
the  River  St.  Lawrence  when  the  ultimate  destination 
of  such  person  of  Chinese  origin  in  transit  is  trans- 
oceanic, the  ports  of  Montreal  and  Quebec  in  the  Pro- 
vince of  Quebec. 

(c)  The  manifest  must  show  the  full  name  and  descrip- 
tion of  each  individual  in  as  complete  a manner  as  would 
be  required  for  registration  were  they  to  remain  in  Canada. 

(d)  The  original  manifest  prepared  at  the  port  of  entry 
shall  be  enclosed  in  a sealed  envelope  and  addressed  to  the 
Collector  of  Customs  at  the  intended  port  of  exit  from 
Canada  and  delivered  to  the  conductor  in  charge  of  the 
train  by  which  such  individuals  are  despatched,  and  shall 
be  delivered  by  the  conductor  in  charge  of  such  train  on 
its  arrival  at  the  designated  port  of  exit  to  the  Collector 
of  Customs  there.  A copy  of  the  manifest  marked  “dupli- 
cate” shall  be  mailed  direct  by  the  Collector  of  Customs  at 


Appendix  A. 


709 


the  port  of  entry  to  the  Collector  of  Customs  at  the  port  of 
exit. 

(e)  Chinese  manifested  on  a port  of  exit  who  desire  to 
pay  the  Capitation  Tax  at  an  interior  port  and  remain  in 
Canada,  may  do  so,  provided  the  train  manifest  of  such 
Chinese  persons  is  delivered  by  the  Conductor  of  the  train 
to  the  Collector  at  the  interior  port  where  the  Capitation 
Tax  is  to  be  paid.  The  Collector  of  the  interior  port  shall, 
after  registration  of  the  Chinese,  place  upon  the  manifest 
the  registration  number,  and  sign  the  same,  and  shall  then 
forward  the  manifest  to  the  Collector  at  the  port  of  exit 
upon  which  the  original  manifest  was  made. 

(f)  The  railway  or  other  company  transporting  such 
persons  of  Chinese  origin  shall,  while  they  are  in  transit 
through  Canada,  keep  them  in  the  car  in  which  embarked 
until  its  arrival  at  the  designated  port  of  exit,  when  they 
shall  be  transferred  to  the  building  referred  to  in  the  Act. 
for  detention  until  the  requirements  of  the  Act  have  been 
complied  with,  where  they  shall  remain  until  the  vessel  in 
which  they  are  to  leave  Canada  is  ready  to  depart,  where- 
upon they  shall  be  taken  directly  on  board  after  the  col- 
lector or  other  officer  in  control  has  satisfied  himself  that 
the  individuals  produced  are  those  named  and  described  in 
the  manifest. 

(g)  The  Collector  of  Customs  at  the  port  of  exit  shall, 
after  checking  the  original  manifest  with  the  Chinese  de- 
scribed thereon  and  satisfying  himself  that  the  said  Chinese 
have  passed  outside  of  Canada,  cancel  the  said  manifest  and 
return  the  mail  copy  by  mail  to  the  sending  port,  retaining 
the  train  copy  of  his  file. 

(h)  The  cars  in  which  such  persons  of  Chinese  origin 
are  conveyed  through  Canada  and  the  buildings  in  which 
temporarily  detained,  shall  be  such  as  are  fitted  with  all 
sanitary  conveniences. 

(i)  All  persons  of  Chinese  origin  in  transit  through 
Canada  passing  outward  or  inward  at  frontier  ports  or  sea 
ports,  or  destined  to  an  interior  port  or  other  port  in  Canada 
must  be  reported  by  Collectors  of  Customs  each  month  on 


710 


Appendix  A. 


Form  C.  I.  8,  copies  of  which  will  be  furnished  upon  appli- 
cation to  the  Chief  Controller  of  Chinese  Immigration. 

6.  All  Orders  in  Council  and  any  Departmental  Regulations 
heretofore  made  in  connection  with  the  transit  through  Canada 
of  persons  of  Chinese  origin,  or  which  are  in  any  way  incon- 
sistent herewith  are  hereby  cancelled. 

Teachers  Exempt. 

Under  a Minute  of  a meeting  of  the  Treasury  Board  held  on 
May  1,  1909,  and  approved  by  His  Excellency  the  Governor  Gen- 
eral on  May  4th  of  the  same  year,  the  following  decision  was  given 
in  the  Chinese  Immigration  Act : 

“The  Treasury  Board  recommend  that  authority  be  granted 
for  the  exemption  from  payment  thereof  of  the  Chinese  Im- 
migration Tax  in  the  case  of  those  persons  of  Chinese  origin  here- 
inafter described,  that  is  to  say: — 

Teachers  who  are  eligible  to  impart  instruction  in  one  of  the 
recognized  schools  or  colleges  or  other  educational  institution  of 
Canada  designed  for  those  whose  entire  time  is  given  to  scholastic 
work.  ’ ’ 

Refund  to  Students. 

In  the  case  of  those  persons  of  Chinese  origin  who  arrived  in 
Canada  since  the  20th  of  July,  1908,  and  who  paid  the  Capitation 
Tax  of  $500  on  their  arrival,  and  since  that  date  have  been  bona 
fide  students  in  attendance  at  some  university,  college,  school  or 
other  educational  institution  in  Canada  for  a period  of  two 
years  may  be  granted  a refund  of  the  said  tax  by  His  Excellency 
the  Governor  General  in  Council. 

Application,  however,  for  such  refunds  in  order  to  receive 
consideration,  must  be  made  within  two  and  one-half  years  of 
the  date  of  arrival,  and  the  application  must  be  accompanied  by 
such  statutory  proofs  and  other  certificates  as  may  be  required 
from  time  to  time. 


6 EDWARD  VII. 

CHAP.  19. 

An  Act  respecting  Immigration  and  Immigrants. 

[Assented  to  13th  July , 1906.] 


Appendix  A. 


711 


His  Majesty,  by  and  with  the  advice  and  consent  of  the  Senate 
and  House  of  Commons  of  Canada,  enacts  as  follows: — 

Short  Title . 

1.  This  Act  may  be  cited  as  the  Immigration  Act. 

Interpretation. 

2.  In  this  Act,  unless  the  context  otherwise  requires, — 

(a)  The  expression  “immigrant”  means  and  includes  any 
steerage  passenger  or  any  “work-a-way”  on  any  vessel  whether 
or  not  entered  as  a member  of  the  crew  after  the  vessel  has  sailed 
from  its  first  or  last  port  of  departure,  any  saloon,  second  class 
passenger  or  person  who  having  been  a member  of  the  crew  has 
ceased  to  be  such,  who,  upon  inspection  is  found  to  come  within 
any  class  liable  to  exclusion  from  Canada,  and  any  person  ar- 
riving in  Canada  by  railway  train  or  other  mode  of  travel;  but 
it  does  not  include  any  person  who  has  previously  resided  in 
Canada  or  who  is  a tourist  merely  passing  through  Canada  to 
another  country; 

(b)  The  expression  “immigration  agent”  includes  the  super- 
intendent of  immigration,  commissioners  of  immigration  and 
any  sub-agents  within  or  outside  of  Canada ; 

(c)  The  expression  “land”  or  “landing,”  as  applied  to 
passengers  or  immigrants,  means  their  admission  (after  having 
complied  with  the  requirements  of  the  Immigration  Act),  into 
Canada,  otherwise  than  for  inspection  or  treatment,  or  other 
temporary  purpose  provided  by  this  Act,  or  by  any  order  in 
council,  or  proclamation,  or  regulation  made  thereunder; 

(d)  The  expression  “master”  means  any  person  in  command 
of  a vessel; 

(e)  The  expression  “medical  officer”  includes  “medical 
superintendent,”  “medical  inspector”  and  “inspecting  phy- 
sician;” 

(f)  The  expression  “Minister”  means  the  Minister  of  the 
Interior ; 

(g)  The  expression  “owner,”  as  applied  to  a ship  or  vessel, 
includes  the  charterer  of  such  ship  or  vessel  and  the  agent  of 
the  owner  thereof; 

(h)  The  expression  “passenger”  includes  any  person  carried 
upon  a railway  train  or  other  vehicle  or  in  a vessel,  other  than 


712 


Appendix  A. 


the  master  and  crew,  as  well  as  all  immigrants  coming  into 
Canada,  but  not  troops  or  military  pensioners  and  their  families, 
who  are  carried  in  transports  or  at  the  expense  of  the  Govern- 
ment of  the  United  Kingdom,  or  of  any  colony  thereof;  Pro- 
vided that  any  person  who  is  unlawfully  on  board  the  vessel 
shall  not  be  held  to  be  a passenger; 

(i)  The  expression  “port  of  entry”  means  any  port,  railway 
station,  or  place  at  which  immigrants  enter  Canada,  or  at  which 
there  is  an  immigration  agent,  or  where  the  medical  inspection 
of  immigrants  is  carried  on; 

(j)  The  expression  “ship”  or  “vessel”  includes  all  ships, 
vessels,  boats,  or  craft  of  any  kind  carrying  passengers. 

3.  Every  person  recognized  by  the  Minister  as  an  immigra- 
tion agent  shall,  with  reference  to  any  act  done  or  to  be  done 
under  this  Act,  and  without  formal  appointment,  be  deemed  to 
be  an  immigration  agent  for  the  purposes  of  this  Act. 

Immigration  Offices. 

4.  The  Governor  in  Council  may  establish  and  maintain  im- 
migration offices  at  such  places  within  and  outside  of  Canada  as 
from  time  to  time  seems  proper. 

Appointment,  Powers  and  Duties  of  Officers. 

5.  The  Governor  in  Council  may  appoint  a superintendent 
of  immigration,  commissioners  of  immigration,  immigration 
agents,  medical  officers,  and  such  other  officers  as  the  Governor 
in  Council  determines. 

6.  Subject  to  any  regulations  in  that  behalf,  the  Minister 
may  appoint  or  employ,  either  permanently  or  temporarily,  any 
necessary  subordinate  officers  not  provided  for  in  the  next  pre- 
ceding section  or  in  any  order  in  council  made  thereunder,  in- 
cluding police  guards,  inspectors,  matrons  and  nurses  to  assist 
immigration  agents  and  medical  officers  in  carrying  out  the  pro- 
visions of  this  Act,  and  of  any  orders  in  council,  proclamations 
or  regulations  made  thereunder,  and  may  confer  upon  them,  and 
charge  them  with,  such  power  and  duties  as  he  considers  neces- 
sary or  expedient. 

7.  Subject  to  the  provisions  of  the  regulations  in  that  behalf, 
immigration  agents  and  medical  officers  may,  in  emergency, 
employ  such  temporary  assistance  as  may  be  required,  but  no 


Appendix  A. 


713 


such  employment  shall  continue  for  a period  of  more  than  forty- 
eight  hours  without  the  sanction  of  the  Minister. 

8.  When,  at  any  port  of  entry,  there  is  no  immigration  agent, 
the  chief  customs  officer  at  that  port  shall  be,  ex-officio,  immigra- 
tion agent. 

9.  Every  officer  appointed  under  this  Act  shall  perform  any 
and  all  duties  prescribed  for  him  by  this  Act,  or  by  any  order 
in  council,  proclamation  or  regulation  made  thereunder,  and  shall 
also  perform  such  duties  as  are  required  of  him  by  the  Minister, 
either  directly  or  through  any  other  officer,  and  no  action  taken 
by  any  such  officer  under  or  for  the  purpose  of  this  Act  shall 
be  deemed  to  be  invalid  or  unauthorized,  merely  because  it  was 
not  taken  by  the  officer  specially  appointed  or  detailed  for  the 
purpose. 

Regulations. 

10.  The  Governor  in  Council  may,  on  the  recommendation  of 
the  Minister,  make  such  orders  and  regulations,  not  inconsistent 
with  this  Act,  as  are  considered  necessary  or  expedient  for  the 
carrying  out  of  this  Act,  according  to  its  true  intent  and  mean- 
ing and  for  the  better  attainment  of  its  objects. 

Immigrants — Proportion  of  Passengers  to  Size  of  Vessel. 

11.  No  vessel  from  any  port  or  place  outside  of  Canada  shall 
come  within  the  limits  of  Canada  having  on  board,  or  having  had 
at  any  time  during  her  voyage, — 

(a)  any  greater  number  of  passengers  than  one  adult  pas- 
senger for  every  fifteen  clear  superficial  feet  on  each  deck  of 
such  vessel,  appropriated  to  the  use  of  such  passengers  and  un- 
occupied by  stores  or  other  goods  not  being  the  personal  luggage 
of  such  passengers,  or — 

(b)  a greater  number  of  persons,  including  the  master  and 
crew  and  the  cabin  passengers,  if  any,  than  one  for  every  two 
tons  of  the  tonnage  of  such  vessel,  calculated  in  the  manner  used 
for  ascertaining  the  tonnage  of  British  ships. 

2.  For  the  purposes  of  this  section,  each  person  of  or  above 
the  age  of  fourteen  years  shall  be  deemed  an  adult,  and  two  per- 
sons above  the  age  of  one  year  and  under  the  age  of  fourteen 
years  shall  be  reckoned  and  taken  as  one  adult. 


714 


Appendix  A. 


Immigrants — Obligations  of  Masters  of  Vessels  Bringing  Them. 

12.  The  master  of  any  vessel  arriving  at  any  port  of  entry  in 
Canada  shall  deliver  a certified  and  correct  report,  in  the  form 
prescribed  by  the  regulations  in  that  behalf,  to  the  immigration 
agent  at  the  port.  The  master  of  any  vessel  shall  not  permit 
any  passenger  to  leave  the  vessel  until  written  permission  from 
the  immigration  agent  to  allow  his  passengers  to  land  has  been 
given  to  such  master. 

13.  The  master  of  any  vessel  sailing  from  a port  outside  of 
Canada  who  embarks  passengers  after  the  vessel  has  been  cleared 
and  examined  by  the  proper  officer  at  the  port  of  departure 
and  who  does  not  deliver  reports  of  such  additional  passengers 
to  the  immigration  agent  at  the  port  of  entry  shall  pay  to  such 
immigration  agent  for  every  passenger  so  embarked  and  not  in- 
cluded in  the  list  of  passengers  delivered  to  such  proper  officer 
at  the  port  of  departure,  or  to  the  proper  officer  at  the  port  at 
which  such  vessel  first  touched  after  the  embarkation  of  such 
passenger,  the  sum  of  twenty  dollars  for  each  passenger  so  em- 
barked as  aforesaid  and  not  included  in  one  of  the  said  lists. 

14.  Nothing  in  this  Act  shall  prevent  the  master  of  any  vessel 
from  permitting  any  passenger  to  leave  the  vessel  outside  of 
Canada  at  the  request  of  such  passenger  before  the  arrival  of 
the  vessel  at  her  final  port  of  destination ; but  in  every  such  case, 
the  name  of  the  passenger  so  leaving  shall  be  entered  in  the 
manifest  on  the  list  of  passengers  made  out  at  the  time  of  the 
clearing  of  the  vessel  from  the  port  of  departure  or  at  the  port 
at  which  such  passenger  was  embarked,  and  shall  be  certified 
under  the  signature  of  the  passenger  so  leaving  the  vessel. 

15.  In  addition  to  the  particulars  hereinbefore  required  in 
the  report  to  be  delivered  on  each  voyage  by  the  master  of  any 
vessel  arriving  at  any  port  of  entry  in  Canada  to  the  immigra- 
tion agent  at  such  port,  the  master  shall  report  in  writing  to 
such  agent  the  name  and  age  of  all  passengers  embarked  on 
board  of  such  vessel  on  such  voyage  who  are  lunatic,  idiotic, 
epileptic,  deaf  and  dumb,  or  dumb,  blind  or  infirm,  or  suffering 
from  any  disease  or  injury  known  to  exist  by  the  medical  officer 
of  the  ship,  specifying  the  nature  of  the  disease  and  stating 
also  whether  they  are  accompanied  by  relatives  able  to  support 
them  or  not. 


Appendix  A. 


715 


16.  The  report  shall  further  contain  the  name,  age  and  last 
place  of  residence  of  any  person  who  has  died  during  the  voyage, 
and  shall  specify  the  cause  of  death  and  whether  such  person 
was  accompanied  by  relatives  or  other  persons  who  were  entitled 
to  take  charge  of  the  moneys  and  effects  left  by  such  person  and 
the  disposition  made  thereof. 

2.  If  there  were  no  such  relatives  or  other  persons  so  entit- 
led, the  report  shall  fully  designate  the  quantity  and  description 
of  the  property,  whether  money  or  otherwise,  left  by  such  person ; 
and  the  master  of  the  vessel  shall  pay  over  and  fully  account,  to 
the  immigration  agent  at  the  port  at  which  the  vessel  is  entered, 
for  all  moneys  and  effects  belonging  to  any  person  who  has  died 
on  the  voyage. 

3.  The  immigration  agent  shall  thereupon  grant  to  the  mas- 
ter a receipt  for  all  moneys  or  effects  so  placed  in  his  hands  by  the 
master,  which  receipt  shall  contain  a full  description  of  the  na- 
ture or  amount  thereof. 

Permission  to  Leave  the  Vessel. 

17.  The  immigration  agent  at  a port  of  entry,  after  satis- 
fying himself  that  the  requirements  of  this  Act  and  of  any  order 
in  council,  proclamation  or  regulation  made  thereunder  have 
been  carried  out,  shall  grant  permission  to  the  master  of  the 
vessel  to  allow  the  passengers  to  leave  the  vessel. 

18.  The  master  shall  furnish  the  immigration  agent,  or  the 
medical  officer,  at  the  port  of  entry  with  a bill  of  health,  certi- 
fied by  the  medical  officer  of  the  vessel,  such  bill  of  health  being 
in  the  form  and  containing  such  information  as  is  required  from 
time  to  time  under  this  Act. 

19.  The  immigration  agent,  whenever  he  deems  proper,  may 
request  the  medical  officer  before  any  passengers  leave  the  vessel 
to  go  on  board  and  inspect  such  vessel,  and  examine  and  take 
extracts  from  the  list  of  passengers  or  manifest,  and  from  the  bill 
of  health. 

20.  The  regulations  to  be  made  by  the  Governor  in  Council 
may  provide  as  a condition  to  permission  to  enter  Canada  that 
immigrants  shall  possess  money  to  a prescribed  minimum  amount, 
which  amount  may  vary  according  to  the  class  and  destination 
of  such  immigrant,  and  otherwise  according  to  the  circumstances. 


716 


Appendix  A. 


Medical  Inspection. 

21.  The  medical  inspection  of  passengers  shall  be  performed 
at  the  hours  named  in  the  regulations  made  by  the  Minister. 

22.  The  immigration  agent  shall  provide  suitable  facilities 
for  the  examination  of  immigrants  at  each  port  of  entry,  subject 
to  any  regulations  made  by  the  Minister. 

23.  The  medical  officer  shall,  after  inspection,  stamp  the  ship 
ticket  or  railway  ticket  or  passport  of  each  passenger  who  has 
passed  the  medical  inspection,  and  the  immigration  agent  shall 
detain  any  passenger  who  has  been  inspected  and  not  admitted, 
as  required  by  this  Act,  or  by  any  Order  in  Council,  proclamation 
or  regulation  made  thereunder. 

24.  The  immigration  agent  shall  be  responsible  for  the  safe- 
keeping of  any  person  so  detained,  except  while  in  a hospital  or 
other  place  of  detention  under  the  charge  of  a medical  officer. 

25.  The  medical  officer  may,  from  time  to  time,  with  the  con- 
sent and  approval  of  the  Minister,  make  such  arrangements  as 
he  considers  necessary  for  the  care  and  supervision  of  immigrants 
who  are  detained  on  board  a vessel  where  hospital  facilities  on 
shore  do  not  exist,  or,  having  been  permitted  to  leave  the  vessel, 
are  detained  either  for  medical  treatment  or  are  awaiting  de- 
portation. 

Immigrants  Prohibited  from  Landing. 

26.  No  immigrant  shall  be  permitted  to  land  in  Canada,  who 
is  feeble-minded,  an  idiot,  or  an  epileptic,  or  who  is  insane,  or 
has  had  an  attack  of  insanity  within  five  years;  nor  shall  any, 
immigrant  be  so  landed  who  is  deaf  and  dumb,  or  dumb,  blind 
or  infirm,  unless  he  belongs  to  a family  who  accompany  him  or 
are  already  in  Canada  and  who  give  security,  satisfactory  to  the 
Minister,  and  in  conformity  with  the  regulations  in  that  behalf, 
if  any,  for  his  permanent  support  if  admitted  into  Canada. 

27.  No  immigrant  shall  be  permitted  to  land  in  Canada  who 
is  afflicted  with  a loathsome  disease  or  with  a disease  which  is 
contagious  or  infectious  and  which  may  become  dangerous  to  the 
public  health  or  widely  disseminated,  whether  such  immigrant 
intends  to  settle  in  Canada  or  only  to  pass  through  Canada  to 
settle  in  some  other  country;  but  if  such  disease  is  one  which  is 
curable  within  a reasonably  short  time  the  immigrant  suffering 
therefrom  may,  subject  to  the  regulations  in  that  behalf,  if  any, 


Appendix  A. 


717 


be  permitted  to  remain  on  board  where  hospital  facilities  do  not 
exist  on  shore,  or  to  leave  the  vessel  for  medical  treatment,  under 
such  regulations  as  may  be  made  by  the  Minister. 

28.  No  immigrant  shall  be  permitted  to  land  in  Canada  who 
is  a pauper,  or  destitute,  a professional  beggar,  or  vagrant,  or 
who  is  likely  to  become  a public  charge;  and  any  person  landed 
in  Canada  who,  within  two  years  thereafter,  has  become  a 
charge  upon  the  public  funds,  whether  municipal,  provincial,  or 
federal,  or  an  inmate  of  or  a charge  upon  any  charitable  in- 
stitution, may  be  deported  and  returned  to  the  port  or  place 
whence  such  immigrant  came  or  sailed  for  Canada. 

29.  No  immigrant  shall  be  permitted  to  land  in  Canada  who 
has  been  convicted  of  a crime  involving  moral  turpitude,  or  who 
is  a prostitute,  or  who  procures,  or  brings  or  attempts  to  bring 
into  Canada  prostitutes  or  women  for  purposes  of  prostitution. 

30.  The  Governor  in  Council  may,  by  proclamation  or  order, 
whenever  he  considers  it  necessary  or  expedient,  prohibit  the 
landing  in  Canada  of  any  specified  class  of  immigrants,  of  which 
due  notice  shall  be  given  to  the  transportation  companies. 

31.  Acting  under  the  authority  of  the  Minister,  the  immigra- 
tion agent,  the  medical  officer,  and  any  other  officer  or  officers 
named  by  the  Minister  for  such  purpose,  may  act  as  a board  of 
inquiry  at  any  port  of  entry  to  consider  and  decide  upon  the 
case  of  any  immigrant  seeking  admission  into  Canada.  The  de- 
cision of  such  board  touching  the  right  of  any  such  immigrant  to 
land  in  Canada  shall  be  subject  to  appeal  to  the  Minister. 

2.  The  Governor  in  Council  may  make  regulations  govern- 
ing the  procedure  in  connection  with  inquiries  by  such  boards  of 
inquiry  and  appeals  from  their  decisions. 

32.  All  railway  or  transportation  companies  or  other  persons 
bringing  immigrants  from  any  country  into  Canada  shall,  on 
the  demand  of  the  superintendent  of  immigration,  deport  to  the 
country  whence  he  was  brought,  any  immigrant  prohibited  by 
this  Act  or  any  order  in  council  or  regulation  made  thereunder, 
from  being  landed  in  Canada,  who  was  brought  by  such  railway, 
transportation  company  or  other  person  into  Canada  within  a 
period  of  two  years  prior  to  the  date  of  such  demand. 

33.  Whenever  in  Canada  an  immigrant  has  within  two  years 
of  his  landing  in  Canada  committed  a crime  involving  moral 
turpitude,  or  become  an  inmate  of  a jail  or  hospital  or  other 


718 


Appendix  A. 


charitable  institution,  it  shall  be  the  duty  of  the  clerk  or  secretary 
of  the  municipality  to  forthwith  notify  the  Minister  thereof, 
giving  full  particulars.  On  receipt  of  such  information  the 
Minister  may,  on  investigating  the  facts,  order  the  deportation 
of  such  immigrant  at  the  cost  and  charges  of  such  immigrant  as 
he  is  able  to  pay,  and  if  not  then  at  the  cost  of  the  municipality 
wherein  he  has  last  been  regularly  resident,  if  so  ordered  by  the 
Minister,  and  if  he  is  a vagrant  or  tramp,  or  there  is  no  such 
municipality,  then  at  the  cost  of  the  Department  of  the  Interior. 
Every  such  immigrant  shall  be  carried  by  the  same  transporta- 
tion company  or  companies  which  brought  him  into  Canada  to 
the  port  from  which  he  came  to  Canada  without  receiving  the 
usual  payment  for  such  carriage.  In  case  he  was  brought  into 
Canada  by  a railway  company  such  company  shall  similarly 
convey  him  or  secure  his  conveyance  from  the  municipality  or 
locality  whence  he  is  to  be  deported  to  the  country  whence  he 
was  brought. 

Protection  of  Immigrants. 

34.  Every  immigrant  on  any  vessel  arriving  at  a port  of 
entry  to  which  the  owner  or  master  of  such  vessel  engaged  to 
convey  him,  if  facilities  for  housing  or  inland  carriage  for  such 
immigrant  are  not  immediately  available,  shall  be  entitled  to  re- 
main and  keep  his  luggage  on  board  the  vessel  twenty-four  hours 
after  such  arrival,  and  the  master  of  such  vessel  shall  not,  be- 
fore the  expiry  of  such  twenty-four  hours,  remove  any  berths  or 
accomodation  used  by  such  immigrants. 

35.  The  master  of  any  vessel  having  immigrants  on  board, 
shall  land  his  passengers  and  their  luggage  free  of  expense  to  the 
said  passengers  at  any  of  the  usual  public  landing  places  at  the 
port  of  arrival,  according  to  orders  which  he  receives  from  the 
immigration  agent  at  the  said  port,  and  at  reasonable  hours  as 
fixed  by  the  immigration  agent  in  accordance  with  the  regula- 
tions in  that  behalf. 

36.  The  Minister  or  the  superintendent  of  immigration  may, 
from  time  to  time,  by  instructions  to  the  immigration  agent  at 
any  port  of  entry  appoint  the  place  at  which  all  passengers  ar- 
riving at  such  port  shall  be  landed. 

37.  At  the  place  so  appointed  the  Minister  may  cause  proper 


Appendix  A. 


719 


shelter  and  accomodation  to  be  provided  for  the  immigrants  until 
they  can  be  forwarded  to  their  place  of  destination. 

38.  No  person  shall,  at  any  port  or  place  in  Canada,  for  hire, 
reward  or  gain,  or  the  expectation  thereof,  conduct,  solicit  or 
recommend,  either  orally  or  by  handbill  or  placard  or  in  any 
other  manner,  any  immigrant  to  or  on  behalf  of  any  owner  of  a 
vessel,  or  to  or  on  behalf  of  any  lodging  house  keeper  or  tavern 
keeper  or  any  other  person,  for  any  purpose  connected  with  the 
preparations  or  arrangements  of  such  immigrant  for  his  passage 
to  his  final  place  of  destination  in  Canada,  or  in  the  United 
States  or  in  other  territories  outside  of  Canada,  or  give  or  pre- 
tend to  give  to  such  immigrant  any  information,  oral,  printed  or 
otherwise,  or  assist  him  to  his  said  place  of  destination,  or  in 
any  way  exercise  the  vocation  of  booking  passengers,  or  of  taking 
money  for  their  inland  fare,  or  for  the  transportation  of  their 
luggage,  unless  such  person  has  first  obtained  a license  from  the 
superintendent  of  immigration  authorizing  him  to  act  in  such 
capacity. 

39.  No  person,  whether  a licensed  immigrant  runner,  or  agent 
or  person  acting  on  behalf  of  any  steamboat  company,  railway 
company,  forwarding  company,  or  hotel  or  boarding-house  keeper 
or  his  agent,  shall  go  on  board  any  vessel  bringing . immigrants 
into  Canada  after  such  vessel  has  arrived  in  Canadian  waters,  or 
into  an  immigration  building  or  on  any  wharf  where  immigrants 
are  landed,  or  shall  book  or  solicit  any  immigrant  by  such  vessel, 
before  the  immigrants  are  landed  from  such  vessel,  unless  he  is 
authorized  so  to  do  by  the  superintendent  of  immigration  or  im- 
migration agent  at  the  port  of  entry  where  such  vessel  is  to  land 
its  passengers. 

40.  Every  keeper  of  a tavern,  hotel  or  boarding  house  in  any 
city,  town,  village  or  place  in  Canada  designated  by  any  order 
in  council  who  receives  into  his  house  as  a boarder  or  lodger  any 
immigrant  within  three  months  from  his  arrival  in  Canada, 
shall  cause  to  be  kept  conspicuously  posted  in  the  public  rooms  and 
passages  of  his  house  and  printed  upon  his  business  card,  a list 
of  the  prices  which  will  be  charged  to  immigrants  per  day  and 
week  for  board  and  lodging,  or  both,  and  also  the  prices  for 
separate  meals,  which  cards  shall  also  contain  the  name  of  the 
keeper  of  such  house  together  with  the  name  of  the  street  in 
which  it  is  situate,  and  its  number  in  such  street.  No  such 


720 


Appendix  A. 


boarding-house  keeper,  hotel  keeper,  or  tavern  keeper  shall  have 
any  lien  on  the  effects  of  such  immigrant  for  any  amount  claimed 
for  such  board  or  lodging  for  any  sum  exceeding  five  dollars. 

41.  If  complaint  be  made  to  the  Minister  or  the  superin- 
tendent of  immigration  against  any  railway  company  or  other 
incorporated  company  of  any  offence  or  violation  of  this  Act,  or 
of  any  law  of  the  United  Kingdom  or  of  any  other  country,  in 
any  matter  relating  to  immigrants  or  immigration,  the  Minister 
may  cause  such  inquiry  as  he  thinks  proper  to  be  made  into  the 
facts  of  the  case,  or  may  bring  the  matter  before  the  Governor 
in  Council  in  order  that  such  inquiry  may  be  made  under  the 
Act  respecting  inquiries  concerning  public  matters. 

2.  If  upon  such  inquiry,  it  appears  to  the  satisfaction  of  the 
Minister  that  the  company  has  been  guilty  of  such  violation,  the 
Minister  may  require  the  company  to  make  such  compensation 
to  the  person  aggrieved,  or  to  do  such  other  thing,  as  is  just  and 
reasonable,  or  may  adopt  measures  for  causing  such  proceedings 
to  be  instituted  against  the  company  as  the  case  requires. 

42.  If  both  the  immigrant  parents,  or  the  last  surviving  im- 
migrant parent  of  any  child  or  children  brought  with  them  in 
any  vessel  bound  for  Canada,  die  on  the  voyage,  or  at  any 
quarantine  station  or  elsewhere  in  Canada  while  still  under  the 
care  of  an  immigration  agent  or  other  officer  under  this  Act,  the 
Minister,  or  such  officer  as  he  deputes  for  the  purpose,  may 
cause  the  effects  of  such  parents  or  parent  to  be  disposed  of  for 
the  benefit  of  such  child  or  children  to  the  best  advantage  in  his 
power,  or  in  his  discretion  to  be  delivered  over  to  any  institution 
or  person  assuming  the  care  and  charge  of  such  child  or  children. 

43.  No  officer,  seaman  or  other  person  on  board  of  any  vessel 
bringing  immigrants  to  Canada  shall,  while  such  vessel  is  in 
Canadian  waters,  entice  or  admit  any  female  immigrant  pas- 
senger into  his  apartment,  or,  except  by  the  direction  or  permis- 
sion of  the  master  of  such  vessel  first  made  or  given  for  such 
purpose,  visit  or  frequent  any  part  of  such  vessel  assigned  to 
female  immigrant  passengers. 

44.  The  master  of  every  vessel  bringing  immigrant  passengers 
to  Canada  shall,  at  all  times  while  the  vessel  is  in  Canadian 
waters,  keep  posted  a written  or  printed  notice  in  the  English, 
French,  Swedish,  Danish,  German,  Russian  and  Yiddish  lan- 
guages, and  such  other  languages  as  are  ordered  from  time  to 


Appendix  A. 


721 


time  by  the  superintendent  of  immigration,  containing  the  pro- 
visions of  this  Act  regarding  the  prevention  of  intercourse  be- 
tween the  crew  and  the  immigrant  passengers,  and  the  penalties 
for  the  contravention  thereof,  in  a conspicuous  place  on  the  fore- 
castle and  in  the  several  parts  of  the  said  vessel  assigned  to  im- 
migrant passengers,  and  keep  the  same  so  posted  during  the  re- 
mainder of  the  voyage. 

2.  The  immigration  agent  at  the  port  of  entry  shall  inspect 
every  such  vessel  upon  arrival  for  evidence  of  compliance  with 
this  section,  and  shall  institute  proceedings  for  any  penalty  in- 
curred thereunder. 


Penalties. 

45.  If  any  vessel  from  any  port  or  place  outside  of  Canada 
comes  within  the  limits  of  Canada  having  on  board  or  having 
had  on  board  at  any  time  during  her  voyage — 

(a)  any  greater  number  of  passengers  than  one  adult  pass- 
enger for  every  fifteen  clear  superficial  feet  on  each  deck  of  such 
vessel  appropriated  to  the  use  of  such  passengers  and  unoccupied 
by  stores  or  other  goods  not  being  the  personal  luggage  of  such 
passengers;  or 

(b)  a greater  number  of  persons,  including  the  master  and 
crew  and  the  cabin  passengers,  if  any,  than  one  for  every  two 
tons  of  the  tonnage  of  such  vessel,  calculated  in  the  manner  used 
for  ascertaining  the  tonnage  of  British  ships,  the  master  of  such 
vessel  shall  incur  a penalty  not  exceeding  twenty  dollars  and  not 
less  than  eight  dollars  for  each  passenger  or  person  constituting 
such  excess. 

46.  If  the  master  of  any  vessel  does  not,  forthwith  after  such 
vessel  arrives  at  any  port  of  entry  in  Canada,  and  before  any 
entry  of  such  vessel  is  allowed,  deliver  to  the  immigration  agent 
at  the  port  at  which  such  vessel  is  to  be  entered  a correct  report, 
in  the  form  prescribed  by  the  regulations  in  that  behalf,  of  all 
the  passengers  on  board  such  vessel  at  the  time  of  her  depart- 
ure from  the  port  or  place  whence  she  last  cleared  or  sailed  for 
Canada,  and  a true  statement  of  the  other  particulars  mentioned 
in  the  said  form,  he  shall  incur  a penalty  of — 

(a)  twenty  dollars  for  each  day  during  which  he  neglects  so 
to  deliver  such  list  and 


722 


Appendix  A. 


(b)  eight  dollars  for  each  passenger  whose  name  is  omitted 
in  such  report. 

47.  If  the  master  of  any  vessel  arriving  at  any  port  of  entry 
in  Canada  permits  any  passenger  to  leave  the  vessel  before  he 
has  delivered  to  the  immigration  agent  at  any  such  port  a certi- 
fied and  correct  report  in  the  form  prescribed  by  the  regulations 
in  that  behalf,  and  has  received  permission  from  the  immigration 
agent  to  allow  the  passengers  to  land,  he  shall  incur  a penalty 
not  exceeding  one  hundred  dollars  and  not  less  than  twenty  dol- 
lars for  every  passenger  so  leaving  the  vessel. 

48.  Every  pilot  who  has  had  charge  of  any  vessel  having 
passengers  on  board,  and  knows  that  any  passenger  has  been  per- 
mitted to  leave  the  vessel  contrary  to  the  provisions  of  this  Act, 
and  who  does  not  immediately  upon  the  arrival  of  such  vessel 
in  the  port  to  which  he  engaged  to  pilot  her,  and  before  the  im- 
migration agent  has  given  permission  to  the  passengers  to  leave 
the  vessel,  inform  the  said  agent  that  such  passenger  or  pass- 
engers has  or  have  been  so  permitted  to  leave  the  vessel,  shall 
incur  a penalty  not  exceeding  one  hundred  dollars  for  every 
passenger  with  regard  to  whom  he  has  wilfully  neglected  to  give 
such  information. 

49.  If  the  master  of  any  vessel  arriving  at  any  port  of  entry 
in  Canada  omits  to  report  in  writing  to  the  immigration  agent 
at  such  port,  in  the  report  required  by  this  Act  to  be  delivered 
by  him  on  each  voyage,  the  name  and  age  of  each  passenger 
embarked  on  board  of  such  vessel  on  such  voyage  who  is  lunatic., 
idiotic,  epileptic,  deaf  and  dumb,  or  dumb,  blind  or  infirm,  or 
suffering  from  any  disease  or  injury  known  to  exist  by  the 
medical  officer  of  the  ship,  stating  also  as  to  each  passenger 
whether  he  is  accompanied  by  relatives,  able  to  support  him  or 
not,  or  makes  any  false  report  in  any  of  such  particulars  he 
shall  incur  a penalty  not  exceeding  one  hundred  dollars,  and  not 
less  than  twenty  dollars  for  every  passenger  in  regard  to  whom 
any  such  omission  occurs  or  any  such  false  report  is  made. 

2.  The  owner  of  the  vessel  shall  in  such  case  also  be  liable  for 
the  aforesaid  penalty,  and,  if  there  be  more  owners  than  one, 
such  owners  shall  be  so  liable  jointly  and  severally;  but  in  any 
case  under  this  section  where  a conviction  has  been  obtained 
against  the  master  of  the  vessel,  no  further  prosecution  against 
the  owner  of  the  vessel  shall  be  instituted. 


Appendix  A. 


723 


50.  If  the  master  of  any  vessel  arriving  at  any  port  in  Canada 
refuses  or  neglects — 

(a)  to  mention  in  the  report,  in  the  form  set  forth  in  the 
schedule  to  this  Act,  the  name,  age  and  last  place  of  residence  of 
any  person  who  has  died  during  the  passage  of  the  vessel,  and  to 
specify  whether  such  passenger  was  accompanied  by  relatives 
or  other  persons,  if  any,  who  would  be  entitled  to  take  charge 
of  the  moneys  and  effects  left  by  such  person,  and  the  disposal 
made  thereof,  or 

(b)  if  there  be  no  such  relatives,  or  other  persons  entitled  to 
take  charge  of  such  moneys  and  effects,  to  fully  designate  in  the 
said  report  the  quantity  and  description  of  the  property,  whether 
money  or  otherwise,  left  by  such  person,  and  to  pay  over  and 
fully  account  therefor  to  the  immigration  agent  for  the  port  at 
which  the  vessel  is  entered,  he  shall  incur  a penalty  not  exceed- 
ing one  thousand  dollars  and  not  less  than  twenty  dollars. 

51.  If  the  master  of  any  vessel  arriving  at  any  port  of  entry 
in  Canada  where  facilities  for  housing  or  inland  carriage  are  not 
immediately  available^  compels  any  immigrant  to  leave  his  vessel 
before  the  expiration  of  the  period  of  twenty-four  hours  after 
the  arrival  of  the  vessel  in  the  port  or  harbour  to  which  the 
master  or  owner  of  such  vessel  engaged  to  convey  such  immigrant, 
he  shall  incur  a penalty  not  exceeding  twenty  dollars  for  each 
such  immigrant  whom  he  so  compels  to  leave  the  vessel. 

2.  If  such  master,  before  the  expiration  of  the  said  period, 
removes  any  berth  or  accomodation  used  by  any  passenger,  ex- 
cept with  the  written  permission  of  the  immigration  agent  at 
the  port  of  entry,  he  shall  for  each  removal  incur  a like  penalty 
of  twenty  dollars. 

52.  If  the  master  of  any  vessel  arriving  at  any  port  of  entry 
fails  or  refuses  to  land  the  passengers  and  their  luggage,  free  of 
expense  to  the  passengers,  at  one  of  the  usual  public  landing 
places  at  such  port  of  arrival,  and  according  to  the  orders  which 
he  receives  from  the  immigration  agent  at  such  port,  and  at 
reasonable  hours  as  fixed  by  such  agent  in  accordance  with  the 
regulations  in  that  behalf,  if  any,  he  shall  incur  a penalty  of 
forty  dollars  for  each  offence. 

53.  If  the  master  of  any  vessel  arriving  at  any  port  of  entry 
in  Canada  and  having  on  board  such  vessel  any  passengers  to 
whom  this  Act  applies  refuses  or  neglects  to  land  such  passengers 


724 


Appendix  A. 


and  their  luggage,  free  of  expense,  and  by  steam  tug  or  other 
proper  tender,  if  necessary,  at  the  place  appointed  under  section 
36  of  this  Act,  and  at  reasonable  hours,  fixed  as  aforesaid,  he 
shall  incur  a penalty  of  twenty  dollars  for  each  such  passenger. 

Immigrant  Runners,  etc. 

54.  Every  person  who,  at  any  port  or  place  within  Canada, 
for  hire,  reward  or  gain,  or  the  expectation  thereof, — 

(a)  conducts,  solicits  or  recommends,  either  orally  or  by 
handbill  or  placard,  or  in  any  other  manner,  any  immigrant  to  or 
on  behalf  of, — 

(i)  any  owner  of  a vessel,  or 

(ii)  any  railway  company,  or 

(iii)  any  lodging-house  keeper  or  tavern  keeper,  or 

(iv)  any  other  person, 

for  any  purpose  connected  with  the  preparations  or  ar- 
rangements of  such  immigrant  for  his  passage  to  his  final  place 
of  destination  in  Canada  or  in  the  United  States  or  to  other 
territories  outside  of  Canada,  or 

(b)  gives  or  pretends  to  give  to  such  immigrant  any  informa- 
tion, printed  or  otherwise,  or  assists  him  to  his  said  place  of 
destination,  or  in  any  way  exercises  the  vocation  of  booking  pass- 
engers or  of  taking  money  for  their  inland  fare,  or  for  the  trans- 
portation of  their  luggage,  shall,  unless  such  person  has  first 
obtained  a license  from  the  superintendent  of  immigration 
authorizing  him  to  act  in  such  capacity,  incur  a penalty  of  not 
more  than  fifty  dollars  for  each  offence. 

55.  Every  licensed  immigrant  runner  or  agent,  or  person 
acting  on  behalf  of  any  owner  of  a vessel,  railway  company,  for- 
warding company  or  any  hotel  or  boarding-house  keeper,  or  his 
agent,  who  goes  on  board  any  vessel  bringing  immigrants  into 
Canada,  or  books  or  solicits  any  immigrant  by  such  vessel,  be- 
fore the  immigrants  are  landed  therefrom,  unless  he  is  author- 
ized by  the  immigration  agent  at  the  port  of  entry  where  such 
vessel  is  to  land  its  passengers  so  to  do,  shall  incur  a penalty  of 
twenty-five  dollars  for  each  offence. 

56.  Every  person  licensed  under  this  Act  as  an  immigrant- 
runner  or  agent,  or  person  acting  on  behalf  of  any  owner  of  a 
vessel,  railway  company,  forwarding  company  or  hotel  or  board- 
ing-house keeper,  and  every  person  in  his  employ  who  sells  to  any 


Appendix  A. 


725 


immigrant  a ticket  or  order  for  the  passage  of  such  immigrant 
or  for  the  conveyance  of  his  luggage  at  a higher  rate  than  that 
for  which  it  could  be  purchased  directly  from  the  company 
undertaking  such  conveyance,  and  every  person  who  purchases 
any  such  ticket  from  an  immigrant  for  less  than  its  value,  or 
gives  in  exchange  for  it  one  of  less  value,  shall  incur  a penalty 
of  twenty  dollars  for  each  such  offence,  and  the  license  of  such 
person  shall  be  forfeited. 

57.  Every  keeper  of  a tavern,  hotel  or  boarding-house  in  any 
city,  town,  village  or  other  place  in  Canada,  designated  by  Order 
in  Council,  who — 

(a)  neglects  or  refuses  to  post  a list  of  prices  and  to  keep 
business  cards  in  which  is  printed  a list  of  the  prices  which  will 
be  charged  to  immigrants  per  day  or  week  for  board  or  lodging, 
or  both,  and  the  prices  for  separate  meals,  and  also  the  name  of 
the  keeper  of  such  house,  together  with  the  name  of  the  street 
in  which  the  house  is  situated  and  its  number  in  such  street,  or — 

(b)  charges  or  receives,  or  permits  or  suffers  to  be  charged 
or  received  for  boarding  or  lodging,  or  for  meals  in  his  house, 
any  sum  in  excess  of  the  prices  so  posted  and  printed  on  such 
business  cards,  or — 

(c)  omits  immediately  on  any  immigrant  entering  such  house 
as  a boarder  or  lodger  or  for  the  purpose  of  taking  any  meal 
therein,  to  deliver  to  such  immigrant  one  of  such  printed  busi- 
ness cards,  shall  incur  a penalty  not  exceeding  twenty  dollars 
and  not  less  than  five  dollars. 

58.  Every  such  boarding-house  keeper,  hotel  keeper  or  tavern 
keeper,  who  detains  the  effects  of  any  immigrant  by  reason  of 
any  claim  for  board  or  lodging  after  he  has  been  tendered  the  sum 
of  five  dollars  or  such  less  sum  as  is  actually  due  for  the  board 
or  lodging  of  such  immigrant,  shall  incur  a penalty  not  exceeding 
twenty-five  dollars  and  not  less  than  five  dollars,  over  and  above 
the  value  of  the  effects  so  detained,  and  he  shall  also  be  liable  to 
restore  such  effects. 

2.  In  the  event  of  any  such  unlawful  detention,  the  effects  so 
detained  may  be  searched  for  and  recovered  under  search  war- 
rant as  in  case  of  stolen  goods. 

59.  Every  officer,  seaman  or  other  person  employed  on  board 
of  any  vessel  bringing  immigrants  to  Canada,  who  while  such 
vessel  is  in  Canadian  waters,  entices  or  admits  any  female  im- 


726 


Appendix  A. 


migrant  into  his  apartment,  or  except  by  the  direction  or  per- 
mission of  the  master  of  such  vessel  first  given,  visits  or  frequents 
any  part  of  such  vessel  assigned  to  female  immigrant  passengers, 
not  being  cabin  passengers,  shall  incur  a penalty  equal  in  amount 
to  his  wages  for  the  voyage  during  which  the  said  offence  was 
committed. 

60.  Every  master  of  any  vessel  who,  while  such  vessel  is  in 
Canadian  waters,  directs  or  permits  any  officer  or  seaman  or 
other  person  employed  on  board  of  such  vessel  to  visit  or  frequent 
any  part  of  such  vessel  assigned  to  immigrants,  except  for  the 
purpose  of  doing  or  performing  some  necessary  act  or  duty  as  an 
officer,  seaman  or  person  employed  on  board  of  such  vessel,  shall 
incur  a penalty  of  twenty-five  dollars  for  each  occasion  on  which 
he  so  directs  or  permits  the  provisions  of  this  section  to  be 
violated  by  any  officer,  seaman  or  other  person  employed  on  board 
of  such  vessel:  This  section  shall  not  apply  to  cabin  passengers, 
or  to  any  part  of  the  vessel  assigned  to  their  use. 

61.  Every  master  of  a vessel  bringing  immigrants  to  Canada 
who  neglects  to  post  and  keep  posted  the  notice  required  by  this 
Act  to  be  posted  regarding  the  prevention  of  intercourse  between 
the  crew  and  the  immigrant  and  the  penalties  for  contravention 
thereof  as  required  by  this  Act  shall  be  liable  to  a penalty  not 
exceeding  one  hundred  dollars  for  each  such  offence. 

62.  If,  during  the  voyage  of  any  vessel  carrying  immigrants 
from  any  port  outside  of  Canada  to  any  part  in  Canada,  the 
master  or  any  of  the  crew  is  guilty  of  any  violation  of  any  of  the 
laws  in  force  in  the  country  in  which  such  foreign  port  is  situate, 
regarding  the  duties  of  such  master  or  crew  towards  the  im- 
migrants in  such  vessel ; or  if  the  master  of  any  such  vessel  during 
such  voyage  commits  any  breach  whatsoever  of  the  contract  for 
the  passage  made  with  any  immigrant  by  such  master,  or  by  the 
owner  of  such  vessel,  such  master  or  such  one  of  the  crew  shall, 
for  every  such  violation  or  breach  of  contract,  be  liable  to  a 
penalty  not  exceeding  one  hundred  dollars  and  not  less  than 
twenty  dollars,  independently  of  any  remedy  which  such  im- 
migrants complaining  may  otherwise  have. 

63.  Every  person  who  violates  any  provision  of  this  Act,  or 
of  any  Order  in  Council,  proclamation  or  regulation  in  respect 
of  which  violation  no  other  penalty  is  provided  by  this  Act,  shall 
incur  a penalty  not  exceeding  one  hundred  dollars. 


Appendix  A. 


727 


Recovery  of  Penalties. 

64.  Every  duty  or  penalty  imposed  under  the  authority  of 
this  Act  upon  the  owner,  charterer  or  master  of  any  vessel  shall, 
until  payment  thereof,  be  a lien  upon  any  vessel  of  the  company 
or  owner  or  charterer  in  respect  whereof  it  has  become  payable, 
and  may  be  enforced  and  collected  by  the  seizure  and  sale  of  the 
vessel,  her  tackle,  apparel  and  furniture,  under  the  warrant  of 
process  of  the  magistrate  or  court  before  whom  it  has  been  sued 
for,  and  shall  be  preferred  to  all  other  liens  or  hypothecations 
except  mariners  ’ wages. 

2.  Every  penalty  imposed  under  the  authority  of  this  Act 
upon  a railway  company  shall,  until  payment  thereof,  be  a lien 
or  charge  upon  the  railway  property,  assets,  rents  and  revenues 
of  such  company. 

Procedure. 

65.  Every  prosecution  for  a penalty  under  this  Act  may  be 
instituted  at  the  place  where  the  offender  then  is,  before  any 
justice  of  the  peace  having  jurisdiction  in  such  place,  and  may 
be  recovered,  upon  summary  conviction,  at  the  suit  of  any  im- 
migration agent,  and  the  penalties  recovered  shall  be  paid  into  the 
hands  of  the  Minister  of  Finance  and  Receiver  General  and  shall 
form  part  of  the  Consolidated-Revenue  Fund  of  Canada.  The 
justice  of  the  peace  may  award  costs  against  the  offender  as  in  or- 
dinary cases  of  summary  proceedings,  and  may,  in  the  case  of  an 
owner,  charterer  or  master  of  a vessel,  also  award  imprisonment 
for  a term  not  exceeding  three  months,  to  terminate  on  payment 
of  the  penalty  incurred,  and  may,  in  his  discretion,  award  any 
part  of  the  penalty,  when  recovered,  to  the  person  aggrieved  by 
or  through  the  act  or  neglect  of  such  offender. 

66.  If  it  appears  to  the  justice,  by  the  admission  of  such 
person  or  otherwise,  that  no  sufficient  distress  can  be  had  where- 
on to  levy  the  moneys  so  adjudged  to  be  paid  he  may,  if  he  thinks 
fit,  refrain  from  issuing  a warrant  of  distress  in  the  case,  or,  if 
such  warrant  has  been  issued,  and  upon  the  return  thereof  such 
insufficiency  as  aforesaid  is  made  to  appear  to  the  justice,  then 
such  justice  shall,  by  warrant,  cause  the  person  ordered  to  pay 
such  money  and  costs  as  aforesaid  to  be  committed  to  gaol,  there 
to  remain  without  bail  for  any  term  not  exceeding  three  months 
unless  such  money  and  costs  ordered  to  be  paid,  and  such  costs 


728 


Appendix  A. 


of  distress  and  sale  as  aforesaid  are  sooner  paid  and  satisfied; 
but  such  imprisonment  of  a master  of  any  vessel  shall  not  dis- 
charge the  vessel  from  the  lien  or  liability  attached  thereto  by 
the  provisions  of  this  Act. 

67.  No  conviction  or  proceeding  under  this  Act  shall  be 
quashed  for  want  of  form,  nor,  unless  the  penalty  imposed  is  one 
hundred  dollars  or  over,  be  removed  by  appeal  or  certiorari  or 
otherwise  into  any  superior  court. 

2.  No  warrant  or  commitment  shall  be  held  void  by  reason 
of  any  defect  therein,  provided  it  is  therein  alleged  that  the  per- 
son has  been  convicted  and  there  is  a good  and  valid  conviction  to 
sustain  the  same. 

3.  In  the  case  of  removal  by  appeal  or  certiorari  or  other- 
wise of  any  conviction  or  proceeding  under  this  Act  into  any  su- 
perior court,  security  shall  be  given  to  the  extent  of  $100  for  the 
costs  of  such  removal  proceedings  to  such  superior  court. 

68.  All  expenses  incurred  in  carrying  out  the  provisions  of 
this  Act  and  of  affording  help  and  advice  to  immigrants  and 
aiding,  visiting  and  relieving  destitute  immigrants,  procuring 
medical  assistance  and  otherwise  attending  to  the  objects  of  im- 
migration, shall  be  paid  out  of  any  moneys  granted  by  Parliament 
for  any  such  purpose  and  under  such  regulations  or  under  such 
orders  in  council,  if  any,  as  are  made  for  the  distribution  and 
application  of  such  moneys. 

69.  Every  owner  or  master  of  a vessel  who  lands  or  permits 
to  land  therefrom  in  Canada  any  immigrant  or  other  passenger, 
the  landing  of  whom  is  prohibited  by  this  Act,  or  by  any  order 
in  council,  proclamation  or  regulation  made  thereunder, whether 
such  immigrant  or  passenger  intends  to  settle  in  Canada  or  only 
intends  to  pass  through  Canada  to  settle  in  some  other  country, 
or  who  refuses  or  neglects,  when  thereunto  lawfully  required, 
to  take  on  board  his  yessel  any  immigrant  or  passenger  who  has 
has  been  so  landed,  shall  incur  a penalty  not  exceeding  one  thous- 
and dollars  and  not  less  than  one  hundred  dollars,  in  the  case 
of  each  such  offence. 

70.  Any  person  landed  in  Canada  from  a vessel,  or  brought 
into  Canada  by  a railway  company,  in  contravention  of  this  Act, 
or  of  any  order  in  council  or  proclamation  lawfully  issued  there- 
under, or  any  person  landed  for  medical  treatment  who  remains 
in  Canada  in  contravention  of  such  order  or  proclamation,  may 


Appendix  A. 


729 


be  apprehended,  without  a warrant,  by  any  immigration  agent 
or  other  Government  officer,  and  may,  by  force  if  necessary,  be 
compelled  to  return  to  or  to  be  taken  on  board  the  vessel,  and,  in 
the  case  of  a railway  company,  be  returned  to  the  country  whence 
he  came;  and  every  owner  or  master  of  a vessel  and  every  rail- 
road company  or  other  person  who  violates  the  provisions  of  this 
section  or  who  aids  or  abets  any  immigrant  or  passenger  in  act- 
ing in  contravention  of  such  order  or  proclamation,  or  who  re- 
fuses or  neglects  to  take  any  such  immigrant  or  passenger  on 
board  such  vessel  or  the  cars  of  such  railway  company,  shall  in- 
cur a penalty  not  exceeding  one  thousand  dollars  and  not  less 
than  one  hundred  dollars  in  the  case  of  each  such  offence. 

2.  Every  railway  company  which  wilfully  receives  or  trans- 
ports any  such  immigrant  or  other  passenger,  or  which  refuses 
or  neglects,  when  thereunto  lawfully  required,  to  take  on  board 
its  cars  any  such  immigrant  or  passenger,  shall  be  liable  to  a 
penalty  not  exceeding  one  thousand  dollars  and  not  less  than 
one  hundred  dollars  in  the  case  of  each  such  offence. 

71.  Any  person  found  in  Canada  who  has  come  into  Canada 
within  a period  of  two  years  from  any  other  country  by  any 
means  or  mode  of  conveyance  and  who  would  be  liable  to  ex- 
clusion or  deportation  under  any  of  the  provisions  of  this  Act 
relating  to  immigrants  or  passengers  arriving  by  ship  or  rail- 
way train  may  be  apprehended  and  compelled  to  return  to  the 
country  when  he  came. 

72.  In  any  case  where  deportation  of  the  father  or  head  of  a 
family  is  ordered,  all  dependent  members  of  the  family  may  be 
deported  at  the  same  time. 

73.  The  following  Acts  are  repealed:  chapter  65  of  the  Re- 
vised Statutes,  the  Immigration  Act;  chapter  34  of  the  statutes 
of  1887 ; and  chapter  14  of  the  statutes  of  1902. 

CAPE  COLONY. 

Summary. 

Any  person  laboring  under  the  disabilities  prescribed  in  the 
immigration  laws  of  the  Colony  shall  be  prohibited  from  enter- 
ing the  Colony.  The  prohibition  includes  any  person  unable, 
by  reason  of  deficient  education,  to  draft  in  an  European  lang- 


730 


Appendix  A. 


uage  a satisfactory  application  for  admission ; any  person  lacking 
visible  means  of  support  or  likely  to  become  a public  charge ; any 
person  convicted  of  murder,  rape,  theft,  fraud,  perjury  or  other 
infamous  crime  when  the  circumstances  of  the  offence  render  the 
immigrant  undesirable;  any  person  of  unsound  mind,  idiotic  or 
insane;  any  person  who  participates  in  any  way  in  the  proceeds 
of  prostitution;  and  any  person  deemed  undesirable  on  official 
information  from  a public  Minister. 

Exemptions. 

Members  of  the  King’s  army  and  navy;  officers  and  crews  of 
all  public  vessels;  accredited  representatives  of  foreign  nations; 
members  of  the  King’s  volunteer  forces  duly  discharged;  wives 
and  minor  children  of  immigrants ; persons  born  in  South  Africa ; 
Asiatics  granted  official  permission  to  enter ; persons  of  European 
birth  residing  in  South  Africa ; farm  or  domestic  laborers,  skilled 
artisans,  mechanics,  workmen  or  miners  immigrating  under  any 
approved  plan  provided  they  are  under  contract  to  serve  a rep- 
utable employer  a reasonable  time  for  an  adequate  wage;  and 
persons  proving  that  they  seek  admission  to  escape  persecution  or 
punishment  for  any  political  or  religious  offense  even  if  destitute 
of  means  of  support  when  licensed  to  enter  by  the  Minister. 

CHILE. 

Summary. 

The  laws  of  Chile  are  framed  on  liberal  lines  calculated  to  in- 
duce rather  than  restrict  immigration.  However,  they  provide 
for  inspection  and  investigation  by  native  officials  to  determine 
whether  prospective  immigrants  are  of  the  class  and  character 
calculated  to  make  useful  citizens. 

Methods. 

Agencies  are  established  in  Hamburg  and  Genoa  for  the  dual 
purpose  of  recruiting  immigrants  and  determining  their  desira- 
bility. From  the  port  of  embarkation  to  Chile  third  class  passage 
will  be  granted  to  persons  holding  a certificate  of  approval  from 
the  government  recruiting  agents.  And  skilled  workmen,  who 
have  held  positions  of  trust  or  authority  as  evidence  of  pro- 


Appendix  A. 


731 


ficiency,  can  secure  second  class  passage.  Workmen’s  tools, 
machines  and  baggage  will  be  transported  free. 

Qualifications. 

Every  foreigner  of  European  origin  or  from  the  United  States, 
under  fifty  years  of  age,  who  is  capable  of  engaging  in  business 
or  industry  or  of  working  at  a trade,  and  supplied  with  requisite 
certificates  of  his  status  will  be  admitted  to  Chile  as  a free  im- 
migrant. But  before  an  immigrant  will  be  accepted  for  trans- 
portation he  must  present  to  the  Chilean  immigration  agents  a 
satisfactory  certificate  of  birth;  of  moral  character,  habits  and 
life ; of  trade,  industry  or  business ; and  of  freedom  from  any  in- 
curable or  contagious  disease. 

CUBA. 

Summary. 

For  public  protection  the  Cuban  law  provides  for  the  exclusion 
of  all  insane  persons,  idiots,  paupers  or  persons  likely  to  become  a 
public  charge ; persons  suffering  from  a loathsome,  dangerous  or 
contagious  disease;  persons  convicted  of  an  infamous  crime,  fel- 
ony, or  misdemeanor  involving  moral  turpitude ; persons  practic- 
ing, polygamy;  persons  convicted  of  felonious  crimes,  non-po- 
litical, whose  sentence  is  remitted  on  condition  of  immigration; 
and  persons  under  labor  contract  assisted  in  defraying  expense 
of  passage. 

Any  person  admitted  who  is  found  within  one  year  to  come 
within  the  provisions  of  this  exclusion  law  may  be  deported. 
Importation  of  women  under  contract  or  otherwise  is  a felonious 
crime  punishable  by  fine  and  imprisonment. 

Before  embarking  for  Cuba  every  immigrant  is  required  to 
answer  in  writing  a searching  list  of  questions  relative  to  present 
and  prior  condition. 

FRANCE. 

Decree  of  the  24th  Vendemiaire,  Year  II.1 

Title  III. 

Article  6.  Every  beggar  who  is  known  to  be  a foreigner  shall 

1 In  force.  Martini,  L ’Expulsion  des  ^strangers,  p.  2. 


732 


Appendix  A. 


be  conducted  to  the  frontier  of  the  Republic  at  the  expense  of  the 
Nation;  he  shall  be  given  three  sous  per  league  up  to  the  first 
village  on  foreign  territory. 

Law  of  December  3 , 1849. 

Article  7.  The  Minister  of  the  Interior  shall  by  means  of  the 
police  have  the  power  to  compel  any  alien  travelling  or  residing 
in  France  to  immediately  quit  French  territory,  and  to  cause 
him  to  be  conducted  to  the  frontier.  He  shall  have  the  same  right 
with  regard  to  a foreigner  who  shall  have  received  authority  to 
establish  his  domicile  in  France ; but  after  a period  of  two  months 
the  order  shall  become  ineffective  if  such  authorization  shall  not 
have  been  revoked  in  accordance  with  the  provisions  of  article 
3.2  In  the  frontier  departments  the  prefect  shall  have  the  same 
power  regarding  non-resident  aliens,  subject,  however,  to  refer  the 
matter  immediately  to  the  Minister  of  the  Interior. 

Article  8.  Any  alien  who  shall  have  avoided  the  execution  of 
the  provisions  set  out  in  the  preceding  article  or  in  Article  272 
of  the  Penal  Code,  or  who,  after  having  left  France  under  the 
operation  thereof,  shall  have  returned  without  the  permission 
of  the  Government,  shall  be  brought  before  a court  and  sen- 
tenced to  an  imprisonment  of  from  one  to  six  months.  After 
having  served  his  sentence  he  shall  be  conducted  to  the  frontier. 

Article  9.  The  penalties  provided  by  the  present  law  shall  be 
appplied  in  conformity  with  the  provisions  of  Article  463  of  the 
Penal  Code. 

Law  of  August  8,  1893. 

Article  1.  * * * Every  alien  not  admitted  to  domicile  who 

shall  arrive  in  a district  for  the  purpose  of  exercising  a profession 
there  or  engaging  in  commerce  or  industry  shall  make  a declara- 
tion of  residence  at  the  mairie  giving  proof  of  his  identity  within 
8 days  of  his  arrival.  * * * * 

The  foreigner  who  shall  not  have  made  the  declaration  pre- 
scribed by  law  within  the  period  stated  shall  be  subject  to  a fine 
of  from  fifty  to  two-hundred  francs.  * * * * 

Article  3.  * * * * He  who  shall  have  knowingly  made  a false 

2 Article  3 provides  as  long  as  naturalization  has  not  been  acquired  the 
authority  granted  an  alien  to  establish  his  domicile  in  France  can  always  be 
revoked  or  modified  by  a decision  of  the  Government  rendered  in  coopera- 
tion with  the  Council  of  State. 


Appendix  A. 


733 


or  inexact  declaration  shall  be  subject  to  a fine  of  from  one 
hundred  to  three  hundred  francs,  and,  if  proper,  to  temporary  or 
indefinite  interdiction  from  French  teritory.  * * * * * * 

GREAT  BRITAIN. 

Chapter  13. 

An  Act  to  Amend  the  Law  With  Regard  to  Aliens. 

(11th  August  1905.) 

Be  it  enacted  by  the  King’s  Most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows: — 

Regulation  of  Alien  Immigration. 

1.  (1)  An  immigrant  shall  not  be  landed  in  the  United 

Kingdom  from  an  immigrant  ship  except  at  a port  at  which  there 
is  an  immigration  officer  appointed  under  this;  Act,  and  shall  not 
be  landed  at  any  such  port  without  the  leave  of  that  officer  given 
after  an  inspection  of  the  immigrants  made  by  him  on  the  ship, 
or  elsewhere  if  the  immigrants  are  conditionally  disembarked 
for  the  purpose,  in  company  with  a medical  inspector,  such  in- 
spection to  be  made  as  soon  as  practicable,  and  the  immigration 
officer  shall  withhold  leave  in  the  case  of  any  immigrant  who 
appears  to  him  to  be  an  undesirable  immigrant  within  the  mean- 
ing of  this  section. 

(2)  Where  leave  to  land  is  so  withheld  in  the  case  of  any  im- 
migrant, the  master,  owner,  or  agent  of  the  ship,  or  the  immi- 
grant, may  appeal  to  the  immigration  board  of  the  port,  and  that 
board  shall,  if  they  are  satisfied  that  leave  to  land  should  not  be 
withheld  under  this  Act,  give  leave  to  land,  and  leave  so  given 
shall  operate  as  the  leave  of  the  immigration  officer. 

(3)  For  the  purposes  of  this  section  an  immigrant  shall  be 
considered  an  undesirable  immigrant — 

(a)  if  he  cannot  show  that  he  has  in  his  possession  or  is  in 
a position  to  obtain  the  means  of  decently  supporting  himself 
and  his  dependents  (if  any)  ; or 

(b)  if  he  is  a lunatic  or  an  idiot,  or  owing  to  any  disease  or 


Appendix  A. 


^34 

infirmity  appears  likely  to  become  a charge  upon  the  rates  or 
otherwise  a detriment  to  the  public;  or 

(c)  if  he  has  been  sentenced  in  a foreign  country  with  which 
there  is  an  extradition  treaty,  for  a crime,  not  being  an  offence 
of  a political  character,  which  is,  as  respects  that  country,  an  ex- 
tradition crime  within  the  meaning  of  the  Extradition  Act,  1870; 
or 

(d)  if  an  expulsion  order  under  this  Act  has  been  made  in 
his  case ; 

but,  in  the  case  of  an  immigrant  who  proves  that  he  is  seeking  ad- 
mission to  this  country  solely  to  avoid  prosecution  or  punishment 
on  religious  or  political  grounds  or  for  an  offence  of  a political 
character,  or  persecution,  involving  danger  of  imprisonment  or 
danger  to  life  or  limb,  on  account  of  religious  belief,  leave  to  land 
shall  not  be  refused  on  the  ground  merely  of  want  of  means,  or 
the  probability  of  his  becoming  a charge  on  the  rates,  nor  shall 
leave  to  land  be  withheld  in  the  case  of  an  immigrant  who  shows 
to  the  satisfaction  of  the  immigration  officer  or  board  concerned 
with  the  case  that,  having  taken  his  ticket  in  the  United  Kingdom 
and  embarked  direct  therefrom  for  some  other  country  imme- 
diately after  a period  of  residence  in  the  United  Kingdom  of  not 
less  than  six  months,  he  has  been  refused  admission  in  that 
country  and  returned  direct  therefrom  to  a port  in  the  United 
Kingdom,  and  leave  to  land  shall  not  be  refused  merely  on  the 
ground  of  want  of  means  to  any  immigrant  who  satisfies  the  im- 
migration officer  or  board  concerned  with  the  case  that  he  was 
born  in  the  United  Kingdom,  his  father  being  a British  subject. 

(4)  The  Secretary  of  State  may,  subject  to  such  conditions 
as  he  thinks  fit  to  impose,  by  order  exempt  any  immigrant  ships 
from  the  provisions  of  this  section  if  he  is  satisfied  that  a proper 
system  is  being  maintained  for  preventing  the  embarkation  of 
undesirable  immigrants  on  those  ships,  or  if  security  is  given  to 
his  satisfaction  that  undesirable  immigrants  will  not  be  landed 
in  the  United  Kingdom  from  those  ships  except  for  the  purpose 
of  transit. 

Any  such  order  of  exemption  may  be  withdrawn  at  any  time 
at  the  discretion  of  the  Secretary  of  State. 

(5)  Any  immigrant  who  lands,  and  any  master  of  a ship  who 
allows  an  immigrant  to  be  landed,  in  contravention  of  this  sec- 
tion shall  be  guilty  of  an  offence  under  this  Act,  but  an  immi- 


Appendix  A. 


735 


grant  conditionally  disembarked  shall  not  be  deemed  to  have 
landed  so  long  as  the  conditions  are  complied  with. 

2.  (1)  The  immigration  board  for  a port  shall  consist  of 
three  persons  summoned  in  accordance  with  rules  made  by  the 
Secretary  of  State  under  this  Act  out  of  a list  approved  by  him 
for  the  port  comprising  fit  persons  having  magisterial,  business, 
or  administrative  experience. 

(2)  A Secretary  of  State  may  make  rules  generally  with  re- 
spect to  immigration  boards  and  their  officers,  and  with  respect 
to  appeals  to  those  boards,  and  with  respect  to  the  conditional 
disembarkation  of  immigrants  for  the  purpose  of  inspection,  ap- 
peals, or  otherwise,  and  may  by  those  rules  amongst  other  things 
provide  for  the  summoning  and  procedure  of  the  board,  and  for 
the  place  of  meeting  of  the  board,  and  for  the  security  to  be  given 
by  the  master  of  the  ship  in  the  case  of  immigrants  conditionally 
disembarked.  Rules  made  under  this  section  shall  provide  for 
notice  being  given  to  masters  of  immigrant  ships  and  immigrants 
informing  them  of  their  right  of  appeal,  and  also,  where  leave 
to  land  is  withheld  in  the  case  of  any  immigrant  by  the  immigra- 
tion officer,  for  notice  being  given  to  the  immigrant  and  the  mas- 
ter of  the  immigrant  ship  of  the  grounds  on  which  leave  has  been 
withheld. 

Expulsion  of  Undesirable  Aliens. 

3.  (1)  The  Secretary  of  State  may,  if  he  thinks  fit,  make  an 
order  (in  this  Act  referred  to  as  an  expulsion  order)  requiring 
an  alien  to  leave  the  United  Kingdom  within  a time  fixed  by  the 
order,  and  thereafter  to  remain  out  of  the  United  Kingdom — 

(a)  if  it  is  certified  to  him  by  any  court  (including  a court 
of  summary  jurisdiction)  that  the  alien  has  been  convicted  by 
that  court  of  any  felony,  or  misdemeanor,  or  other  offence  for 
which  the  court  has  power  to  impose  imprisonment  without  the 
option  of  a fine,  or  of  an  offence  under  paragraph  twenty-two  or 
twenty-three  of  section  three  hundred  and  eighty-one  of  the 
Burgh  Police  (Scotland)  Act,  1892,  or  of  an  offence  as  a prosti- 
tute under  section  seventy-two  of  the  Towns  Improvement  (Ire- 
land) Act,  1854,  or  paragraph  eleven  of  section  fifty-four  of  the 
Metropolitan  Police  Act,  1839,  and  that  the  court  recommend 
that  an  expulsion  order  should  be  made  in  his  case,  either  in  ad- 
dition to  or  in  lieu  of  his  sentence ; and 


736 


Appendix  A. 


(b)  if  it  is  certified  to  him  by  a court  of  summary  jurisdic- 
tion after  proceedings  taken  for  the  purpose  within  twelve  months 
after  the  alien  has  last  entered  the  United  Kingdom,  in  accord- 
ance with  rules  of  court  made  under  section  twenty-nine  of  the 
Summary  Jurisdiction  Act,  1879,  that  the  alien — 

(i)  has  within  three  months  from  the  time  at  which  pro- 
ceedings for  the  certificate  are  commenced  been  in  receipt  of 
any  such  parochial  relief  as  disqualifies  a person  for  the 
parliamentary  franchise,  or  been  found  wandering  without 
ostensible  means  or  subsistence,  or  been  living  under  insani- 
tary conditions  due  to  overcrowding ; or 

(ii)  has  entered  the  United  Kingdom  after  the  passing 
of  this  Act,  and  has  been  sentenced  in  a foreign  country  with 
which  there  is  an  extradition  treaty  for  a crime  not  being 

* an  offence  of  a political  character  which  is  as  respects  that 
country  an  extradition  crime  within  the  meaning  of  the 
Extradition  Act,  1870. 

(2)  If  any  alien  in  whose  case  an  expulsion  order  has  been 
made  is  at  any  time  found  within  the  United  Kingdom  in  contra- 
vention of  the  order,  he  shall  be  guilty  of  an  offence  under  this 
Act. 

4.  (1)  Where  an  expulsion  order  is  made  in  the  case  of  any 

alien,  the  Secretary  of  State  may,  if  he  thinks  fit,  pay  the  whole 
or  any  part  of  the  expenses  of  or  incidental  to  the  departure  from 
the  United  Kingdom  and  maintenance  until  departure  of  the 
alien  and  his  dependents  (if  any). 

(2)  If  an  expulsion  order  is  made  in  the  case  of  any  alien 
(not  being  an  alien  who  last  entered  the  United  Kingdom  before 
the  commencement  of  this  Act,  or  an  immigrant  in  whose  case 
leave  to  land  has  been  given  under  this  Act)  on  a certificate  given 
within  six  months  after  he  has  last  entered  the  United  Kingdom, 
the  master  of  the  ship  in  which  he  has  been  brought  to  the  United 
Kingdom  and  also  the  master  of  any  ship  belonging  to  the  same 
owner  shall  be  liable  to  pay  to  the  Secretary  of  State  as  a debt 
due  to  the  Crown  any  sums  paid  by  the  Secretary  of  State  under 
this  section  in  connection  with  the  alien,  and  shall,  if  required 
by  the  Secretary  of  State,  receive  the  alien  and  his  dependents 
(if  any)  on  board  his  ship,  and  afford  them  free  of  charge  a 
passage  to  the  port  of  embarkation  and  proper  accomodation  and 
maintenance  during  the  passage. 


Appendix  A. 


737 


(3)  If  the  master  of  a ship  fails  to  comply  with  the  provisions 
of  this  section  as  to  giving  a passage  to  an  alien  or  his  depend- 
ents, he  shall  be  guilty  of  an  offence  under  this  Act. 

General. 

5.  (1)  The  master  of  any  ship  landing  or  embarking  pas- 
sengers at  any  port  in  the  United  Kingdom  shall  furnish  to  such 
person  and  in  such  manner  as  the  Secretary  of  State  directs  a 
return  giving  such  particulars  with  respect  to  any  such  passen- 
gers who  are  aliens  as  may  be  required  for  the  time  being  by 
order  of  the  Secretary  of  State,  and  any  such  passenger  shall 
furnish  the  master  of  the  ship  with  any  information  required  by 
him  for  the  purpose  of  the  return. 

(2)  If  the  master  of  a ship  fails  to  make  the  return  required 
by  this  section,  or  makes  a false  return,  he  shall  be  guilty  of  an 
offence  under  this  Act,  and  if  any  alien  refuses  to  give  infor- 
mation required  by  the  master  of  the  ship  for  the  purpose  of  the 
return  under  this  section,  or  gives  any  false  information  for  the 
purpose,  he  shall  be  liable  on  summary  conviction  to  imprison- 
ment for  a term  not  exceeding  three  months  with  hard  labour. 

(3)  The  Secretary  of  State  may  by  order  exempt  from  the 
provisions  of  this  section  any  special  class  of  passengers  or  voy- 
agers, or  any  special  ships  or  ports,  but  any  such  order  may  be 
withdrawn  at  any  time  at  his  discretion. 

6.  (1)  The  Secretary  of  State  shall  appoint,  at  such  ports 
in  the  United  Kingdom  as  he  thinks  necessary  for  the  time  being, 
immigration  officers  and  medical  inspectors,  and  may  appoint  or 
employ  such  officers  or  persons  as  may  be  required  for  the  pur- 
poses of  immigration  boards,  or  for  the  purpose  of  the  returns  to 
be  given  under  this  Act,  or  otherwise  for  carrying  this  Act  into 
effect,  and  the  salary  and  remuneration  of  any  officers,  inspec- 
tors, or  persons  so  appointed  or  employed,  and  any  expenses 
otherwise  incurred  in  carrying  this  Act  into  effect  (including 
such  payment  as  may  be  sanctioned  by  the  Treasury  for  the  at- 
tendance of  any  person  as  a member  of  an  immigration  board  to 
hear  appeals),  shall,  up  to  an  amount  approved  by  the  Treasury, 
be  paid  out  of  moneys  provided  by  Parliament. 

(2)  The  Secretary  of  State  may  arrange  with  the  Commis- 
sioners of  Customs  or  any  other  Government  department  or  any 
port  sanitary  authority  for  the  appointment  or  employment  of 


738 


Appendix  A. 


officers  of  Customs  or  officers  of  that  department  or  authority  as 
officers  under  this  Act. 

(3)  The  Secretary  of  State  shall  make  known,  in  such  man- 
ner as  he  thinks  best  suited  for  the  purpose,  the  ports  at  which 
immigration  officers  are  for  the  time  being  appointed  under  this 
Act. 

7.  (1)  Any  person  guilty  of  an  offence  under  this  Act  shall, 

if  the  offence  is  committed  by  him  as  the  master  of  a ship,  be 
liable,  on  summary  conviction,  to  a fine  not  exceeding  one  hundred 
pounds,  and,  if  the  offence  is  committed  by  him  as  an  immigrant 
or  alien,  be  deemed  a rogue  and  vagabond  within  the  meaning 
of  the  Vagrancy  Act,  1824,  and  be  liable  to  be  dealt  with  accord- 
ingly as  if  the  offence  were  an  offence  under  section  four  of  that 
Act. 

(2)  Sections  six  hundred  and  eighty-four,  six  hundred  and 
eighty-five,  and  six  hundred  and  eigthy-six  of  the  Merchant  Ship- 
ping Act,  1894  (which  relate  to  the  jurisdiction  of  courts  and 
justices),  shall  apply  with  respect  to  jurisdiction  under  this  Act 
as  they  apply  with  respect  to  jurisdiction  under  that  Act,  and 
section  six  hundred  and  ninety -three  of  the  Merchant  Shipping 
Act,  1894  (which  relates  to  the  levying  of  sums  ordered  to  be 
paid  by  distress  on  a ship),  shall  apply  with  respect  to  any  fines 
or  other  sums  of  money  to  be  paid  under  this  Act  by  the  master 
of  a ship  as  it  applies  with  respect  to  fines  and  other  sums  of 
money  to  be  paid  under  that  Act. 

(3)  Any  immigrant  who  is  conditionally  disembarked,  and 
any  alien  in  whose  case  an  expulsion  order  is  made,  while  await- 
ing the  departure  of  his  ship,  and  whilst  being  conveyed  to  the 
ship,  and  whilst  on  board  the  ship  until  the  ship  finally  leaves  the 
United  Kingdom,  and  any  alien  in  whose  case  a certificate  has 
been  given  by  a court,  with  a view  to  the  making  of  an  expulsion 
order  under  this  Act,  until  the  Secretary  of  State  has  decided 
upon  his  case,  shall  be  liable  to  be  kept  in  custody  in  such  man- 
ner as  the  Secretary  of  State  directs,  and  whilst  in  that  custody 
shall  be  deemed  to  be  in  legal  custody. 

(4)  If  any  immigrant,  master  of  a ship,  or  other  person,  for 
the  purposes  of  this  Act,  makes  any  false  statement  or  false  repre- 
sentation to  an  immigration  officer,  medical  inspector,  immigra- 
tion board,  or  to  the  Secretary  of  State,  he  shall  be  liable  on  sum- 


Appendix  A. 


739 


mary  conviction  to  imprisonment  for  a term  not  exceeding  three 
months  with  hard  labour. 

(5)  If  any  question  arises  on  any  proceedings  under  this  Act, 
or  with  reference  to  anything  done  or  proposed  to  be  done  under 
this  Act,  whether  any  person  is  an  alien  or  not,  the  onus  of  prov- 
ing that  that  person  is  not  an  alien  shall  lie  on  that  person. 

(6)  In  carrying  out  the  provisions  of  this  Act,  due  regard 
shall  be  had  to  any  treaty,  convention,  arrangement,  or  engage- 
ment with  any  foreign  country. 

8.  (1)  The  expression  “ immigrant’ ’ in  this  Act  means  an 

alien  steerage  passenger  who  is  to  be  landed  in  the  United  King- 
dom, but  does  not  include — 

(a)  Any  passenger  who  shows  to  the  satisfaction  of  the 
immigration  officer  or  board  concerned  with  the  case  that  he 
desires  to  land  in  the  United  Kingdom  only  for  the  purpose 
of  proceeding  within  a reasonable  time  to  some  destination 
out  of  the  United  Kingdom;  or 

(b)  Any  passengers  holding  prepaid  through  tickets  to 
some  such  destination,  if  the  master  or  owner  of  the  ship  by 
which  they  are  brought  to  the  United  Kingdom,  or  by  which 
they  are  to  be  taken  away  from  the  United  Kingdom,  gives 
security  to  the  satisfaction  of  the  Secretary  of  State  that, 
except  for  the  purposes  of  transit  or  under  other  circum- 
stances approved  by  the  Secretary  of  State,  they  will  not 
remain  in  the  United  Kingdom,  or,  having  been  rejected  in 
another  country  re-enter  the  United  Kingdom,  and  that  they 
will  be  properly  maintained  and  controlled  during  their 
transit. 

(2)  The  expression  “immigrant  ship”  in  this  Act  means  a 
ship  which  brings  to  the  United  Kingdom  more  than  twenty  alien 
steerage  passengers,  who  are  to  be  landed  in  the  United  Kingdom, 
whether  at  the  same  or  different  ports,  or  such  number  of  those 
passengers  as  may  be  for  the  time  being  fixed  by  order  of  the 
Secretary  of  State,  either  generally  or  as  regards  any  special 
ships  or  ports. 

(3)  The  expression  “passenger”  in  this  Act  includes  any 
person  carried  on  the  ship  other  than  the  master  and  persons  em- 
ployed in  the  working,  or  service,  of  the  ship,  and  the  expression 
“steerage  passenger”  in  this  Act  includes  all  passengers  except 
such  persons  as  may  be  declared  by  the  Secretary  of  State  to  be 


740 


Appendix  A. 


cabin  passengers  by  order  made  either  generally  or  as  regards 
any  special  ships  or  ports. 

(4)  If  any  question  arises  under  this  Act  on  an  appeal  to  an 
immigration  board  whether  any  ship  is  an  immigrant  ship  with- 
in the  meaning  of  this  Act,  or  whether  any  person  is  an  immi- 
grant, a passenger,  or  a steerage  passenger,  within  the  meaning  of 
this  Act,  or  whether  any  offence  is  an  offence  of  a political  char- 
acter, or  whether  a crime  is  an  extradition  crime,  that  question 
shall  be  referred  to  the  Secretary  of  State  in  accordance  with 
rules  made  under  this  Act,  and  the  board  shall  act  in  accordance 
with  his  decision. 

(5)  The  Secretary  of  State  may  withdraw  or  vary  any  order 
made  by  him  under  this  section. 

9.  (1)  In  the  application  of  this  Act  to  Scotland  and  Ire- 
land the  words  “be  liable  on  summary  conviction  to  imprison- 
ment for  a term  not  exceeding  three  months  with  hard  labour” 
shall  be  substituted  for  the  words  ‘ ‘ be  deemed  a rogue  and  vaga- 
bond within  the  meaning  of  the  “Vagrancy  Act,  1824,  and  be 
liable  to  be  dealt  with  accordingly  as  if  “the  offence  was  an  of- 
fence under  section  four  of  that  Act.” 

(2)  Section  thirty-three  of  the  Summary  Procedure  (Scot- 
land) Act,  1864,  shall  be  substituted  as  respects  Scotland  for 
section  twenty-nine  of  the  Summary  Jurisdiction  Act,  1879;  and 
the  Lord  Chancellor  of  Ireland  may,  as  respects  Ireland,  make 
rules  for  the  purposes  of  this  Act  for  which  rules  may  be  made 
under  section  twenty-nine  of  the  Summary  Jurisdiction  Act, 
1879;  and  all  rules  so  made  shall  be  laid,  as  soon  as  may  be,  be- 
fore both  Houses  of  Parliament. 

10.  (1)  This  Act  may  be  cited  as  the  Aliens  Act,  1905,  and 
shall  come  into  operation  on  the  first  day  of  January  nineteen 
hundred  and  six. 

(2)  The  Registration  of  Aliens  Act,  1836,  is  hereby  repealed. 
I.  GEO.  V. 

A Bill  to  Amend  the  Aliens  Act , 1905.  A.  D.  1911. 

Be  it  enacted  by  the  King’s  most  excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows : — 


Appendix  A. 


741 


1.  (1)  Every  alien  immigrant  who  is  landed  in  the  United 
Kingdom  after  the  passing  of  this  Act  shall,  within  three  days, 
send  in  writing  for  registration  to  the  chief  officer  of  police  of  the 
district  in  which  he  is  at  the  time  of  making  the  return,  a return 
in  the  form  specified  in  the  First  Schedule  to  this  Act,  and  when- 
ever such  alien  changes  his  place  of  abode  he  shall  notify  with- 
in twenty-four  hours  in  writing  such  change  to  the  chief  officer 
of  police  in  the  district  to  which  he  goes,  and  also  to  the  chief 
officer  of  police  of  the  district  that  he  has  left. 

(2)  If  any  such  alien  fails  to  comply  with  the  provisions  of 
this  section  he  shall  be  liable  on  summary  convicton  to  a fine  not 
exceeding  twenty  pounds , and  in  addition  to  or  in  lieu  of  such 
fine,  he  may  be  required  to  leave  the  United  Kingdom  under  an 
expulsion  order,  which  order  the  Secretary  of  State  is  hereby  em- 
powered to  make,  if  it  is  certified  to  him  by  a court  of  summary 
jurisdiction  that  the  alien  has  been  convicted  by  that  court  of  an 
offence  under  this  section. 

(3)  A separate  return  under  this  section  shall  not  be  re- 
quired in  the  case  of  an  alien  immigrant  under  the  age  of  sixteen 
years  residing  or  living  as  a dependent  with  an  alien  who  is  re- 
quired under  this  section  to  make  a return. 

(4)  A copy  of  the  form  specified  in  the  Schedule  to  this  Act 
shall  be  given  to  every  alien  immigrant  before  he  is  landed  by 
the  immigration  officer. 

2.  Where  an  alien  has  been  convicted  by  any  court  of  any  of 
the  offences  specified  in  section  three,  subsection  (1)  of  the  prin- 
cipal Act,  the  court  shall,  whether  or  not  it  recommended  that  an 
expulsion  order  should  be  made  in  the  case  of  the  alien  so  con- 
victed, send,  as  soon  as  may  be  after  the  conviction,  particulars 
in  writing  to  the  Secretary  of  State,  and  the  Secretary  of  State 
may,  if  he  thinks  fit,  make  an  expulsion  order  in  the  case  of  the 
alien  so  convicted  either  in  addition  to  or  in  lieu  of  any  other 
punishment  to  which  the  alien  may  have  been  sentenced,  notwith- 
standing that  the  court  has  not  recommended  the  making  of  an 
expulsion  order. 

3.  Officers  of  local  authorities  charged  with  the  duty  of  carry- 
ing out  inspections  under  the  Public  Health  Acts  or  other  Acts 
shall  report  to  the  local  authority  all  cases  in  which  a person 
whom  they  have  reasonable  cause  to  believe  to  be  an  alien  is 
living  under  insanitary  conditions,  due  to  overcrowding,  and  un- 


742 


Appendix  A. 


less  the  local  authority  itself  takes  proceedings  under  section 
three,  subsection  (1)  (b)  of  the  principal  Act  against  the  alien 
concerned,  it  shall  report  particulars  of  every  such  case  to  the 
chief  officer  of  police  of  the  district  in  which  such  overcrowding 
is  reported  to  exist. 

4.  (1)  An  alien  shall  not  purchase  or  have  in  his  custody 
or  possession  a pistol  unless  he  shall  first  have  applied  for  and  ob- 
tained from  the  chief  officer  of  police  of  the  district  in  which  he 
resides  a certificate  authorizing  him  to  have  a pistol  in  his  cus- 
tody or  possession. 

(2)  If  the  chief  officer  of  police  in  the  exercise  of  his  discre- 
tion shall  decline  to  grant  such  certificate  to  an  alien,  the  alien 
may  appeal  to  a court  of  summary  jurisdiction  within  the  dis- 
trict, and  that  court  shall,  if  it  is  satisfied  that  the  certificate  has 
been  unreasonably  withheld,  grant  such  certificate. 

(3)  A certificate  granted  under  this  section  may  be  cancelled 
at  any  time  by  a court  of  summary  jurisdiction  if  it  is  shown 
to  the  satisfaction  of  the  court  that  the  alien  to  whom  the  certifi- 
cate has  been  granted  is  not  a fit  person  to  have  a pistol  in  his 
custody  or  possession. 

(4)  Any  alien  having  in  his  custody  or  possession  a pistol 
shall  produce  a certificate  under  this  section  if  required  to  do  so 
by  any  officer  of  police  or  constable. 

(5)  If  any  alien  acts  in  contravention  of  the  provisions  of 
this  section  he  shall  be  guilty  of  offence  under  the  principal  Act. 

(6)  If  any  person  knowingly  gives,  sells,  lets,  or  lends,  a 
pistol  to  any  alien  without  the  previous  production  to  him  by 
such  alien  of  a certificate  under  this  section  he  shall  be  guilty  of 
an  offence  under  this  Act,  and  shall  be  liable  on  summary  convic- 
tion to  a fine  not  exceeding  twenty  pounds. 

5.  (1)  If  a justice  of  the  peace  is  satisfied  by  information 
on  oath  that  there  is  reasonable  ground  for  supposing  that  an 
alien  is  in  possession  of  a pistol  in  contravention  of  the  provisions 
of  this  or  any  other  Act,  he  may  grant  a search  warrant  to  any 
constable  or  constables  named  therein. 

(2)  A search  warrant  granted  under  this  section  shall  author- 
ize any  constable  named  therein  to  enter  the  abode  of  the  alien, 
or  any  place  where  any  such  constable  has  reasonable  grounds 
for  supposing  the  alien  to  be,  if  need  be  by  force,  to  arrest  the 
alien  and  take  the  names,  nationalities,  and  addresses  of  any 


Appendix  A. 


743 


other  persons  upon  the  premises,  and  to  seize  any  pistol  found  on 
the  premises  or  in  possession  of  the  alien  or  of  any  person  upon 
the  premises. 

(3)  Where  it  appears  to  a superintendent  or  other  officer  of 
police  of  equal  or  superior  rank  that  the  case  is  one  of  emergency, 
and  that  the  delay  in  obtaining  a warrant  would  be  likely  to  en- 
danger life,  and  such  superintendent  or  officer  has  reasonable 
cause  to  believe  that  an  offence  under  this  Act  has  been  or  is 
being  committed  with  respect  to  a pistol  in  any  place,  a constable 
may,  if  authorized  by  written  order  from  such  superintendent 
or  officer  enter  and  search,  if  necessary  by  force,  and  do  all  such 
things  as  if  he  were  a constable  named  in  a search  warrant  under 
this  section. 

(4)  A person  obstructing  a constable  or  officer  in  the  execu- 
tion of  his  duty  under  this  section  shall  be  guilty  of  an  offence 
under  this  Act,  and  shall  be  liable  on  summary  conviction  to  a 
fine  not  exceeding  twenty  pounds. 

6.  (1)  Where  any  person  certifies  that  he  purposes  to  give 
employment  to  an  alien  immigrant,  leave  to  land  shall  not  be 
granted  solely  on  the  strength  of  this  statement  by  the  immigra- 
tion officer  on  board  concerned  with  the  case,  unless  and  until, 
either 

(a)  in  the  case  of  trade  for  which  a trade  board  has  fixed  a 
minimum  rate  which  has  not  yet  been  made  obligatory,  the  said 
person  has  given  written  notice  in  the  manner  provided  by  the 
Trade  Boards  Act,  1909,  section  seven,  subsection  (1)  paragraph 
(b)  that  he  is  willing  that  the  rate  should  be  obligatory  on  him  in 
all  respects ; or 

(b)  in  the  case  of  other  trades,  the  said  person  has  made  a 
declaration  that  all  the  persons  then  in  his  employment  are  paid 
rates  of  wages  recognized  as  fair  for  Government  and  municipal 
contracts  for  the  particular  class  of  work  and  for  the  particular 
district  concerned  and  that  such  rates  will  be  paid  to  the  alien 
immigrant. 

(2)  If  any  person  makes  any  false  statement  or  false  repre- 
sentation for  the  purposes  of  this  section  he  shall  be  guilty  of  an 
offence  under  section  seven,  subsection  (4)  of  the  principal  Act. 

7.  Before  any  rule  or  order  (other  than  an  expulsion  order) 
is  made  by  the  Secretary  of  State  under  the  principal  Act  of  this 
Act,  a draft  thereof  shall  be  laid  before  each  House  of  Parliament 


744 


Appendix  A. 


for  a period  of  not  less  than  thirty  days  during  the  session  of 
Parliament,  and  if  either  of  the  Houses  before  the  expiration  of 
those  thirty  days  presents  an  address  to  His  Majesty  against  the 
draft,  or  any  part  thereof,  no  further  proceedings  shall  be  taken 
thereon,  without  prejudice  to  the  making  of  any  new  draft  order. 

8.  In  this  Act  and  the  principal  Act,  unless  the  context  other- 
wise requires, — 

The  expression  “principal  Act”  means  the  Aliens  Act,  1905; 

The  term  “pistol”  means  a firearm  or  weapon  of  any  descrip- 
tion from  which  any  shot,  bullet,  or  other  missile  can  be  dis- 
charged, and  of  which  the  length  of  barrel,  not  including  any  re- 
volving, detachable,  or  magazine  breech,  does  not  exceed  nine 
inches ; 

The  expression  “immigrant  ship”  means  a ship  which  brings 
to  the  United  Kingdom  an  alien  steerage  passenger  who  is  to  be 
landed  in  the  United  Kingdom. 

9.  The  provisions  of  the  principal  Act  specified  in  the  Second 
Schedule  of  this  Act  are  hereby  repealed. 

10.  This  Act  shall  come  into  operation  on  the  first  day  of 
January  nineteen  hundred  and  twelve. 

11.  This  Act  may  be  cited  as  the  Aliens  Act  (1905)  (Amend- 
ment) Act,  1911,  and  shall  be  construed  as  one  with  the  Aliens 
Act,  1905 ; and  that  Act  and  this  Act  may  be  cited  together  as  the 
Aliens  Acts. 


ITALY. 

Law  of  December  22,  1888. 

(In  connection  with  the  new  penal  code  as  provided  by  the  decree 
of  June  30  1889.  Y 

i 

Title  III,  Chapter  II. 

# * ### 

Article  90.  Foreigners  who  have  been  convicted  of  a crime 
may,  after  their  sentence  has  expired,  be  expelled  from  the  King- 
dom and  conducted  to  the  frontier. 

The  Minister  of  the  Interior  shall,  for  the  interest  of  public 

1 See  Annuaire  de  legislation  etrang&re  de  1889,  p.  409. 


Appendix  A. 


745 


safety,  have  the  power  to  order  that  a foreigner  either  passing 
through  or  residing  in  the  Kingdom  shall  be  expelled  and  con- 
ducted to  the  frontier.  This  provision  is  not  applicable  to 
Italians  residing  outside  the  territorial  limits  of  the  Kingdom. 

Article  91.  A foreigner  who  has  been  expelled  shall  not  re- 
enter the  Kingdom  without  a special  permit  issued  by  the  Minis- 
ter of  the  Interior. 

In  case  of  the  violation  hereof  he  shall  be  punished  by  im- 
prisonment of  at  most  six  months  duration: 

After  having  served  his  sentence  such  alien  shall  be  again 
expelled. 

Article  92.  The  prefects  of  the  frontier  provinces  are  author- 
ized, on  grounds  of  public  safety,  to  expel  from  the  frontier  com- 
munities aliens  coming  within  the  provisions  of  article  90.  Ex- 
traordinary cases  shall  be  referred  to  the  Minister.  They  are 
also  empowered  to  prevent  foreigners  from  crossing  the  frontier 
if  they  are  unable  to  establish  their  identity  or  if  they  are  with- 
out means  of  support. 

Article  93.  Those  who  are  sent  back  to  their  county  of  or- 
igin and  provided  with  an  official  itinerary  shall  not  depart  from 
the  route  designated  therein.  If  they  depart  therefrom  they 
shall  be  delivered  to  the  magistrate  of  the  place  where  they  shall 
be  found.  The  penalty  of  imprisonment  for  one  month  or  more 
is  applicable  in  case  of  a violation  of  this  article. 

On  the  termination  of  his  sentence  such  an  alien  shall  proceed, 
under  escort,  along  the  route  designated.  The  same  provision 
is  applicable  to  those  who  shall  not,  within  the  term  fixed  by 
law,  appear  before  the  public  safety  authorities  indicated  in  the 
itinerary. 

JAMAICA. 

LAW  25  OF  1905. 

The  Immigration  of  Paupers  ( Prevention ) Law,  1905. 

[27th  May,  1905.1 

Be  it  enacted  by  the  Governor  and  Legislative  Council  of  Ja- 
maica, as  follows 

1.  (1)  If  on  the  arrival  of  any  ship  at  this  colony  there  is 

on  board  any  person,  not  a native  of  or  domiciled  in  this  colony, 


746 


Appendix  A. 


who  in  the  opinion  of  the  Harbour  Master,  or  of  the  Health  Of- 
ficer, or  of  the  Senior  Officer  of  Customs  in  the  port  is  unable  by 
reason  of  physical  or  mental  infirmity  to  maintain  himself,  or 
who  is  likely,  if  permitted  to  land,  to  become  chargeable  to  the 
funds  provided  for  the  relief  of  the  poor,  the  Harbour  Master 
or  other  officer  as  aforesaid,  shall  by  notice  in  writing  to  be 
served  on  the  master  of  the  ship,  or  affixed  to  the  mast  thereof, 
forbid  the  landing  of  such  person.  Provided,  that  it  shall  be 
lawful  for  the  Governor  in  Privy  Council  to  make  rules  for  the 
guidance  of  the  Harbour  Master  or  other  officer  aforesaid,  in  the 
execution  of  the  duties  imposed  on  him  by  this  Law. 

(2)  The  person  named  or  described  in  such  notice  shall  not 
land  in  any  part  of  this  colony,  except  some  person  resident  in 
the  colony  and  approved  by  the  Colonial  Secretary  as  sufficient, 
shall  by  deed,  which  may  be  in  the  form  given  in  the  schedule, 
covenant  with  the  Governor  of  this  colony  and  his  successors  in 
office  to  repay  to  the  Governor  of  the  colony  and  his  successors  in 
office,  any  charges  which  may  within  one  year  from  the  date  of 
such  deed  be  incurred  by  the  Government  or  any  Parochial 
Board  in  respect  of  such  person  forbidden  to  land  as  aforesaid. 
Such  deed  shall  be  exempt  from  Stamp  Duty. 

3.  If  any  person  forbidden  to  land  as  aforesaid,  lands  in  this 
colony 

(a)  the  ship  by  which  such  person  arrived  at  this  colony  shall 
be  subject  to  a maritime  lien  in  favour  of  His  Majesty  the  King, 
his  heirs  and  successors  for  a sum  of  one  hundred  pounds  in  re- 
spect of  each  person  forbidden  to  land  as  aforesaid,  and  the 
amount  so  charged  may  be  sued  for  and  recovered  in  the  Colonial 
Court  of  Admiralty; 

(b)  the  ship  by  which  such  person  arrived  at  this  colony  may 
be  detained  by  force,  if  necessary,  by  the  Harbor  Master  or  other 
officer  as  aforesaid,  with  the  aid  of  the  water  police,  or  any  mem- 
ber of  the  constabulary  (who  are  hereby  required  to  render  as- 
sistance to  the  Harbour  Master  or  other  officer  as  aforesaid,  when 
called  upon),  until  payment  of  the  lien  aforesaid,  or  until  ar- 
rested under  process  of  the  Colonial  Court  of  Admiralty; 

(c)  The  master  of  such  ship  shall  be  liable  to  a penalty  not 
exceeding  fifty  pounds ; 

(d)  the  person  forbidden  to  land  as  aforesaid,  or  any  person 
who  aids  or  assists  him  in  landing,  shall  be  liable  to  a penalty  not 


Appendix  A. 


747 


exceeding  fifty  pounds,  and  the  person  forbidden  to  land  may  be 
taken  back  on  board  such  ship. 

(4)  All  penalties  under  this  section  may  be  recovered  in  a 
summary  manner  before  a Resident  Magistrate,  or  two  Justices 
of  the  Peace. 

2.  The  master  of  any  ship  arriving  at  this  colony  shall  answer 
all  questions  which  the  Harbour  Master  or  other  officer  aforesaid 
shall  put  to  him,  and  any  master  who  shall  either  refuse  to 
answer  any  such  question,  or  who  shall  give  an  untrue  answer 
thereto,  shall  be  liable  to  a penalty  not  exceeding  fifty  pounds. 

LUXEMBURG. 

Law  of  December  30,  1893.1 

Article  1.  Every  alien  who  has  not  been  admitted  to  domicile 
and  who  intends  to  establish  a residence  in  the  Grand  Duchy 
shall,  within  five  days  after  his  arrival,  declare  his  intentions  in 
this  regard  to  the  local  authority  of  the  community  where  he  de- 
sires to  settle. 

In  case  of  a change  of  residence  a new  declaration  shall  be 
made  within  the  same  period  to  the  local  authority  of  the  com- 
munity wherein  the  alien  shall  have  established  his  new  residence. 

These  declarations  shall  contain  the  names  of  all  foreigners 
living  in  the  establishment  of  the  declarant  or  dwelling  with  him 
including  his  foreign  servants. 

A receipt  shall  be  delivered  to  the  interested  party  without  cost. 

Article  2.  No  persons  shall,  under  the  penalties  provided  by 
the  present  law,  engage  as  domestics,  or  workmen  or  receive  as 
lodgers  aliens  who  shall  not  have  given  proof  that  they  have  made 
the  declaration  prescribed  by  showing  the  receipt  provided  by 
Article  1. 

Article  3.  The  declaration  prescribed  by  Article  1 shall  con- 
tain facts  necessary  to  establish  and  verify  the  civil  status,  the 
antecedents  and  means  of  existence  of  the  foreigner  and  other 
persons  mentioned  in  the  declaration. 

1 See  Ruppert,  penal  code  and  code  of  criminal  procedure,  and  special 
laws  and  police  regulations  in  force  in  tlie  Grand  Duchy  of  Luxemburg 
(Luxemburg  1900),  p.  465  et  seq. 


748 


Appendix  A. 


They  shall  be  immediately  transmitted  to  the  court  by  the 
authority  of  the  agent  empowered  to  receive  them. 

# # # * 

Article  5.  Entrance  into  the  Grand  Duchy  may  be  denied  a 
foreigner  who  is  known  to  be  dangerous  or  to  be  likely  to  com- 
promise the  public  safety  and  tranquility.  Such  aliens  may  be 
refused  the  right  to  settle  in  the  country  as  may  aliens  who  do 
not  present  papers  of  legitimation  or  who  have  not  sufficient 
means  of  support  for  themselves  and  their  families. 

Article  6.  A non-resident  alien  found  to  be  a vagabond  or  a 
beggar  or  to  be  violating  the  law  dealing  with  those  the  exercise 
of  whose  profession  takes  them  from  place  to  place  in  any  of  the 
frontier  provinces,  and  an  alien  to  whom  admission  into  the 
country  has  been  refused  in  accordance  with  article  5 paragraph 
1 shall  be  at  once  conducted  to  the  frontier  by  the  police. 

Non-resident  aliens  who  shall  be  found  in  the  Grand  Duchy  in 
bodies  of  three  or  more  and  who  are  vagabonds  or  mendicants  or 
who  are  here  in  violation  of  the  law  dealing  with  ambulatory  pro- 
fessions, can  likewise  be  conducted  direct  to  the  frontier  by  the 
police. 

Article  7.  An  alien  residing  in  the  Grand  Duchy  who  by  his 
conduct  shall  compromise  the  public  order  or  tranquility,  or  who 
has  been  convicted  or  whose  apprehension  is  sought  in  a foreign 
country  for  a crime  or  misdemeanor  giving  rise  to  extradition  in 
accordance  with  the  law  or  treaties  on  the  subject,  may  be  ob- 
liged to  leave  a given  place,  to  live  in  a given  place,  or  even  to 
be  sent  out  or  expelled  from  the  Grand  Duchy  in  the  absence  of 
a demand  for  his  extradition. 

The  following  persons  are  likewise  subject  to  expulsion:  (1) 
foreigners  who  shall  continue  to  live  in  the  country  after  they 
shall  have  been  duly  notified  that  the  establishment  of  a residence 
in  the  Grand  Duchy  has  been  denied  them;  (2)  those  who,  after 
having  been  sent  back  or  conducted  to  tbe  frontier  as  provided 
in  article  6,  shall  return  to  the  country  within  two  years;  (3) 
those  who  shall  have  failed  to  conform  to  the  conditions  under 
which  they  may  reside  here  imposed  by  the  first  paragraph  of  the 
present  article. 

Article  8.  The  alien  who  is  one  of  those  entitled  to  make  the 


Appendix  A. 


749 


declaration  provided  by  articles  9 and  10  of  the  civil  code,1 
article  10  of  the  Constitution2  and  the  first  and  only  article 
of  the  supplementary  law  of  February  5,  18903  is  not  subject  to 
expulsion  before  the  expiration  of  the  period  of  option. 

Article  9.  The  measures  provided  by  article  5 of  the  present 
law  are  to  be  taken  by  the  Government  and  those  provided  by 
article  7,  after  consideration  in  Government  Council  by  the  officer 
in  charge  of  the  general  police  service. 

There  shall  be  no  appeal  from  these  orders. 

Orders  of  expulsion  shall  be  communicated  to  the  aliens  con- 
cerned by  the  marshal  when  directed  to  do  so  by  the  Procureur 
General.  The  cost  of  these  acts  of  notification  shall  be  paid  for 
by  the  police  appropriation. 

Orders  issued  under  article  5 shall  be  transmitted  to  those 
concerned  by  the  administrative  branch. 

Article  10.  The  order  of  expulsion  shall  state  the  period 
within  which  the  person  expelled  shall  leave  the  country. 

Aliens  who  have  been  expelled  and  who  shall  be  at  that  time  in 
custody  may  be  conducted  to  the  frontier  at  the  expiration  of 
such  custody. 

Article  11.  The  individual  expelled  in  accordance  with  article 
9 shall  have  the  right  to  designate  the  frontier  by  which  he  in- 
tends to  leave  the  country. 

In  default  of  such  designation  by  him  the  frontier  shall  be 
designated  officially  by  the  Procureur  General. 

1 Article  9.  Any  person  born  in  Luxemburg  of  foreign  parentage  may 
in  the  year  following  his  majority  claim  the  status  of  a Luxembourgeois ; 
provided  that  in  case  he  resides  in  Luxemburg  he  shall  declare  his  intention 
to  fix  his  domicile  there  and  in  case  he  resides  in  a foreign  country  he  an- 
nounces his  intention  to  fix  his  domicile  in  Luxemburg  and  establishes  it 
therein  during  the  year  following  the  act  of  such  announcement. 

Article  10.  A child  bora  abroad  being  the  child  of  a Luxemburgeois 
who  shall  have  lost  his  status  as  such  shall  be  able  to  recover  it  by  executing 
the  formalities  provided  in  article  9. 

2 Constitution  of  October*  17,  1868.  Article  10 : Naturalization  granted 
the  father  is  communicated  to  his  minor  child  if  the  latter  declares  within 
two  years  after  having  obtained  his  majority  his  desire  to  take  advantage 
of  this  privilege. 

3 Law  of  February  5,  1890:  Article  10  of  the  Civil  Code  is  to  be  inter- 
preted to  mean  “that  it  is  applicable  to  a child  bora  of  a mother  whose 
country  of  origin  is  Luxemburg  and  who  shall  have  lost  her  status  as  a 
citizen  of  Luxemburg.  ” 


750 


Appendix  A. 


Any  person  who  has  been  expelled  and  who  shall  be  found 
within  the  country  after  the  expiration  of  the  period  within 
which  he  has  been  ordered  to  leave  it,  shall  be  conducted  to  the 
frontier  by  the  police. 

Article  12.  The  following  persons  shall  be  punished  with  a 
fine  of  from  ten  to  twenty-five  francs:  (l)the  foreigner  who  shall 
have  failed  within  the  time  prescribed  to  make  the  declaration 
provided  by  article  1,  or  who  shall  have  made  it  in  an  incomplete 
manner  with  regard  to  the  provisions  of  article  3,  or  who  shall 
have  refused  to  produce  his  receipt  when  first  asked  to  do  so; 
(2)  those  who  shall  have  neglected  to  furnish  within  the  time 
prescribed  the  extract  provided  by  article  4 or  who  shall  have 
produced  it  in  incomplete  form  with  regard  to  the  provisions  of  ar- 
ticle 555  of  the  penal  code;  (3)  those  who  shall  have  received  as 
servants,  workmen  or  lodgers,  aliens  who  have  not  been  furnished 
with  a receipt  showing  that  they  have  made  the  declaration  pro- 
vided by  article  1. 

Articles  565  and  566  of  the  penal  code1  are  applicable  to  vio- 
lations of  the  present  article. 

In  case  the  offender  is  a recidivist,  the  court  shall  have  power 
to  impose  in  addition  to  the  fine  an  imprisonment  not  exceeding 
twelve  days. 

Article  13.  Aliens  who  aside  from  their  declarations  of  resi- 
dence shall  have  knowingly  given  proper  authorities  false  state- 
ments regarding  their  civil  status,  their  place  of  birth  or  that  of 
their  last  residence,  or  the  civil  status,  place  of  birth  or  last 
residence  of  other  persons  included  in  the  declaration  shall  be 
punished  with  a fine  of  from  twenty-six  to  three  hundred  francs 
and  imprisonment  from  eight  days  to  three  months. 

Article  14.  Aliens  who  have  been  expelled  and  who  shall  re- 
enter the  Grand  Duchy  without  prior  authorization,  shall  be 
punished  with  imprisonment  of  fifteen  days  to  six  months  and  a 
fine  of  from  fifty  to  five  hundred  francs. 

At  the  expiration  of  their  sentence  they  shall  be  conducted  to 
the  frontier. 

1 Article  565  provides  that  a person  is  a recidivist  (akin  to  our  “habitual 
criminal”)  when  he  shall  have  been  convicted  of  the  same  offence  during 
the  twelve  months  preceding. 


Appendix  A. 


751 


MEXICO. 

Law  of  December  22,  1908. 

Immigration. 

Chapter  1.  General  provisions. 

Article  1.  Aliens  coming  to  the  Republic  shall  be  allowed  to 
enter  only 

I.  by  the  seaports 

II.  by  frontier  towns  authorized  by  international  com- 
merce or  specially  designated  by  the  executive  power. 

Article  2.  Any  alien  who  desires  to  enter  the  National  terri- 
tory shall  be  subjected  to  an  examination  in  order  to  determine 
his  admissibility  under  the  present  law.  ****** 

Article  3.  Aliens  included  in  the  following  classes  shall  not 
have  the  right  to  enter: 

I.  Those  suffering  from  bubonic  plague,  cholera,  yellow 
fever,  cerebro-spinal  meningitis,  typhoid  fever,  exan thematic  (ul- 
cerous) typhoid,  erysipelis,  scarlet  fever,  scarletina,  small-pox, 
dyptheria,  or  any  other  dangerous  malady  held  to  be  contagious 
by  an  official  declaration  of  the  executive  authority; 

II.  Those  afflicted  with  tuberculosis,  leprosy,  beriberi,  trach- 
oma, Egyptian  itch,  or  any  other  chronic  disease  adjudged  con- 
tagious by  an  official  declaration  of  the  executive  authority. 

III.  Epileptics  and  those  mentally  afflicted; 

TV.  The  aged,  those  afflicted  with  ricketts,  the  infirm,  lame, 
maimed,  humpbacks,  paralytics,  those  suffering  with  blindness  or 
in  any  way  disabled,  those  suffering  from  some  physical  or  men- 
tal infirmity  as  the  result  of  which  they  are  incapacitatel  for 
the  performance  of  physical  labor,  and  are  therefore  likely  to  be- 
come public  charges. 

Y.  Children  of  less  than  sixteen  years  of  age  unaccompanied 
by  another  passenger,  or  who  have  not  been  confided  to  the  care 
of  a person  residing  in  the  country  who  shall  take  them  in  charge ; 

VI.  Fugitives  from  justice  and  those  who  have  been  convicted 
of  a crime  which  if  committed  in  violation  of  the  laws  of  Mexico 
is  punishable  with  imprisonment  of  more  than  two  years  except 
crimes  purely  political  or  military ; 

VII.  Persons  belonging  to  anarchistic  societies,  or  who  pub- 


752 


Appendix  A. 


lish,  support  and  profess  the  doctrine  of  the  overthrow  of  govern- 
ments by  violence  or  the  assassination  of  public  officials. 

VIII.  Beggars  or  persons  depending  in  any  way  for  their 
living  on  public  charity; 

IX.  Prostitutes  and  persons  who  attempt  to  import  them  into 
the  country  for  purposes  of  prostitution  or  for  the  purpose  of 
gaining  a livelihood  at  their  expense. 

Article  4.  Foreigners  included  in  subdivisions  II,  III  and  IV 
of  the  preceding  article  may  enter  the  country  and  remain  there 
if  specially  authorized  to  do  so  by  the  Executive  Power  on  the 
condition  of  furnishing  a bond  which  the  latter  may  deem  suf- 
ficient to  guarantee  under  the  circumstances  that  they  will  sup- 
port themselves  at  their  own  expense;  that  they  will  keep  them- 
selves isolated  in  an  appropriate  place  or  that  they  will  not  be- 
come public  charges. 

W W W W WWW 

Article  7.  When  a foreigner  shall  have  entered  after  this  law 
shall  have  gone  into  effect  and  in  violation  of  its  provisions  the 
government  may  order  that  he  be  sent  back  to  the  country  whence 
he  came  if  he  shall  not  have  resided  in  the  Republic  for  more 
than  three  years,  and  that  he  be  placed  in  detention.  The  vehicle 
of  expulsion  shall  be  the  railroad  or  the  ship  belonging  to  the 
company  which  brought  him  to  the  country  and,  in  case  this  is 
not  possible,  some  other  ship  or  railroad  at  the  expense  of  the 
said  company. 

Article  8.  The  Executive  Power  may  suspend,  under  circum- 
stances which  may  seem  fitting  in  such  case,  the  expulsion  of  an 
alien  who  shall  have  entered  in  violation  of  this  law  if  in  its 
opinion  it  shall  be  necessary  to  take  his  testimony  in  a criminal 
case. 

Article  9.  Navigation  companies  “and  immigration  associations 
shall  be  financially  liable  for  violation  of  this  law  committed  by 
their  agents  and  employees;  consequently  when  the  commander 
of  a vessel  or  the  surgeon  shall  refuse  to  pay  the  fines  imposed 
the  execution  thereof  shall  be  made  upon  the  property  of  the  com- 
pany which  is  responsible.  ********* 

Chapter  II.  Arrival  of  Passengers  by  Sea. 

Article  12.  Upon  the  arrival  of  a vessel  bringing  passengers 


Appendix  A. 


753 


for  debarkation  upon  the  territory  of  the  Republic,  the  following 
rules  shall  be  observed: 

I.  The  master  of  the  vessel  shall  present  to  the  inspector  of 
immigration  lists  made  out  in  duplicate  of  all  the  passengers  in- 
scribed in  numerical  order  containing  the  names,  Christian 
names,  sex,  age,  civil  status,  nationality,  race,  office  or  occupation, 
grade  of  education,  the  last  foreign  residence,  the  port  of  embar- 
kation and  the  destination  in  this  country  of  each.  * # * * 

II.  The  lists  shall  clearly  show  what  passengers  are  sick,  and 
shall  indicate  the  nature  of  their  disease  under  the  acknowledg- 
ment of  the  ship’s  surgeon  who,  together  with  the  master,  shall 
sign  the  same  and  certify  to  the  correctness  of  the  information 
contained  therein. 

III.  Each  passenger  shall  have  a card  to  be  given  him  by  the 
master  of  the  vessel  setting  forth  his  full  name,  and  his  number 
on  the  list  in  order  that  he  may  be  easily  identified. 

IV.  The  master  shall  likewise  state  on  the  lists  all  the  infor- 
mation which  he  may  possess  with  regard  to  the  passengers  rela- 
tive to  whether  or  not  some  of  them  should  not  be  admitted  to 
the  territory  of  the  Republic. 

V.  Each  passenger  shall  undergo  a medical  examination  to 
determine  whether  or  not  he  is  suffering  with  some  illness  or  if 
there  is  some  disability  justifying  his  expulsion. 

The  master  of  a vessel  who  shall  violate  any  one  of  the  pro- 
visions of  this  article  or  who  shall  fail  to  set  forth  on  the  lists  the 
true  condition  of  the  persons  above  mentioned  in  any  one  of  the 
cases  provided  by  article  3,  shall  be  punished  administratively 
by  the  infliction  of  a fine  of  from  one  hundred  to  five  hundred 
pesos.  The  same  penalty  shall  be  inflicted  upon  the  ship’s  sur- 
geon who  shall  have  made  out  and  signed  false  declarations. 

Article  13.  Debarkation  shall  take  place  at  precisely  the  place 
and  hour  fixed  by  the  inspector  of  immigration  and  all  the  pre- 
cautions prescribed  for  the  purpose  of  avoiding  disorder  or  the 
admission  of  persons  to  whom  this  right  is  refused  shall  be  ob- 
served. 

A debarkation  which  shall  take  place  at  a place  and  hour  other 
than  those  fixed  by  the  inspector  shall  be  considered  unlawful, 
and  all  persons  who  shall  have  been  landed  shall  be  forthwith  put 
back  on  board.  Moreover,  the  master  of  the  vessel  shall  be  pun- 
ished with  the  infliction  of  a fine  of  one  hundred  to  one  thousand 


754 


Appendix  A. 


pesos  or  imprisonment  (of  six  months)  or  both  as  the  court  shall 
determine. 

Article  14.  Arrangements  at  the  sanitary  station  permitting 
it,  passengers  shall  be  received  there  when  the  vessel  arrives  for 
the  purpose  of  undergoing  the  necessary  examinations  and  to  de- 
cide their  admissibility  and  the  measures  to  be  adopted  with  re- 
gard to  them  in  conformity  with  this  law. 

Passengers  whom  it  is  not  seen  fit  to  admit  shall  be  immediately 
sent  back  on  board. 

If  the  arrangements  at  the  sanitary  station  are  insufficient, 
the  examinations  shall  take  place  on  board  ship. 

Article  15.  Passengers  who,  at  the  time  of  their  arrival,  shall 
be  found  suffering  from  one  of  the  contagious  diseases  mentioned 
in  paragraph  I of  article  3 shall  be  isolated  in  the  hospital  of  the 
port  until  cured.  The  costs  of  assistance  and  treatment  shall  be 
at  the  expense  of  the  passengers  themselves  and  if  they  are  devoid 
of  resources,  of  the  company  which  shall  have  brought  them.  * * 

Article  16.  Aliens  who  at  the  time  of  their  arrival  shall  be 
found  to  be  afflicted  with  one  of  the  contagious  diseases  mentioned 
in  paragraph  2 of  article  3 shall  not  be  allowed  to  disembark 
without  having  obtained  a special  permit  from  the  Executive 
Power  in  conformity  with  Article  4. 

# # * * ### 

Article  18.  If  an  alien  succeeds  in  landing  while  afflicted 
with  one  of  the  diseases  mentioned  in  paragraph  2 of  article  3 or 
who  is  subject  to  exclusion  under  paragraphs  3 to  9 of  said 
article,  his  reembarkation  on  the  same  vessel  which  brought  him 
shall  be  immediately  ordered,  or,  if  the  vessel  has  left,  on  the 
vessel  of  the  same  company  next  sailing  for  the  country  whence 
he  came,  or  upon  any  other  having  this  destination  if  the  com- 
pany has  no  vessel  sailing  for  such  port  within  the  period  of  a 
month.  ******** 

Article  19.  The  master  of  a vessel  who  shall  refuse  to  carry 
out  the  order  of  reembarkation  of  foreigners  shall  be  punished 
administratively  with  a fine  of  from,  five  to  five  hundred  pesos 
and  the  vessel  shall  not  be  allowed  to  depart  until  the  order  is 
carried  out.  The  company  shall  pay  a fine  equal  to  that  imposed 
upon  the  master  and  the  foreigner  shall  be  sent  back  at  its  ex- 
pense on  some  other  vessel.  If  the  ship  which  has  brought  for- 


Appendix  A. 


755 


eigners  who  are  ordered  to  be  expelled  has  already  sailed,  the  or- 
der of  reembarkation  shall  be  issued  to  the  company  which  has 
transported  them.  ***** 

Chapter  3.  Immigrant  Laborers  and  Immigration  Enterprises. 

Article  20.  For  the  purposes  of  the  present  law  those  for- 
eigners who  come  to  the  Republic  for  the  purpose  of  definitely 
taking  up  manual  labor  shall  be  considered  immigrant  laborers. 
Persons  who  form  part  of  the  family  of  an  immigrant  laborer 
are  included  within  this  term. 

The  provisions  of  this  chapter  and  the  preceding  chapter  shall 
apply  to  the  entry  of  immigrant  laborers. 

Article  21.  When  immigrant  laborers  arrive  in  a number 
greater  than  ten  on  the  same  ship,  they  shall  be  denied  admission 
except  at  the  ports  designated  for  this  purpose  by  the  Executive 
Power. 

Article  22.  Navigation  companies  whose  ships  are  exclusively 
used  for  the  transportation  of  immigrant  laborers  or  which  are 
accustomed  to  bring  more  than  ten  on  each  trip  shall: 

I.  Furnish  their  ships  with  apparatus  and  instruments  nec- 
cessary  for  bringing  about  a quick  disinfection  and  destruction 
of  pathogenic  germs ; 

II.  Always  have  on  board  each  ship  a ship ’s  surgeon ; 

III.  Provide  at  ports  to  which  they  bring  immigrants,  in  case 
the  government  has  no  sanitary  establishments  of  adequate  facili- 
ties, establishments  for  the  purpose  of  the  isolation  and  examina- 
tion of  the  immigrants  and  for  the  treatment  of  those  who  shall 
be  found  to  be  suffering  from  disease,  and  of  sufficient  size  to  pro- 
vide for  all  of  those  whom  they  bring,  conforming  in  all  respects 
to  the  provisions  and  regulations  issued  by  the  executive  power ; 

IV.  Maintain  and  take  complete  charge,  at  their  own  ex- 
pense, and  for  the  period  of  time  prescribed  by  the  executive 
power,  of  the  immigrants  whom  they  shall  have  brought,  during 
their  detention  in  hospitals  and  other  places  of  observation ; 

Y.  Return  in  their  ships  and  at  their  expense  immigrants 
who  shall  not  have  been  admitted  in  conformity  with  this  law 
and  those  who  shall  have  been  expelled  on  the  ground  of  having 
unlawfully  landed,  provided  that  both  classes  shall  have  been  im- 
ported on  the  ships  of  the  company ; 


756 


Appendix  A. 


VI.  Maintain  in  the  city  of  Mexico,  a representative  clad 
with  sufficient  power  to  take  up  matters  which  may  present  them- 
selves, and  to  answer  for  the  responsibility  assumed  by  the  com- 
pany, and  another  representative  with  similar  powers  in  each 
port  to  which  their  ships  shall  bring  immigrants ; 

VII.  Furnish  a good  and  sufficient  bond  in  the  discretion 
of  the  executive  power  guaranteeing  the  execution  of  the  obliga- 
tions imposed  upon  them  by  the  present  law  and  renew  this 
bond  whenever  it  shall  be  necessary  to  do  so. 

Article  23.  Companies  which  shall  fail  to  execute  the  obliga- 
tion prescribed  by  paragraphs  1,  2 and  7,  of  the  preceding  article 
shall  be  required  to  do  so  by  the  executive  power  and  if  they 
shall  not  have  carried  out  this  order  within  the  time  prescribed 
no  one  of  their  ships  transporting  immigrants  shall  be  admitted 
into  Mexican  ports.  If  a company  fails  to  carry  out  the  con- 
ditions prescribed  by  paragraphs  4 and  5 of  the  preceding  ar- 
ticle, the  bond  prescribed  by  paragraph  7 shall  be  required  in  the 
necessary  sum;  or,  by  the  exercise  of  the  economic  coercive 
branch,  the  company  shall  be  required  to  pay  the  sum  due  if  the 
bond  is  not  provided  or  is  held  insufficient. 

Article  24.  When  a vessel  shall  bring  a larger  number  of  im- 
migrants than  the  sanitary  station  of  the  Government  can  pro- 
vide for  in  connection  with  the  post  established  by  the  company, 
debarkation  can  only  be  authorized  of  the  number  which  the  sta- 
tion will  contain ; the  others  shall  submit  to  the  examination  and 
if  it  is  possible,  to  the  period  of  observation  or  treatment  on 
board  the  vessel  itself. 

When  a vessel  arrrives  and  there  is  no  sanitary  station  avail- 
able, or  when  it  is  impossible  to  make  use  of  the  station  of  another 
company  for  its  immigrants  and  there  is  no  government  station 
at  its  disposal,  the  immigrants  which  have  been  brought  shall 
remain  on  board  and  shall  be  examined  on  the  ship  and,  if  pos- 
sible, shall  be  subjected  there  to  the  period  of  observation  and 
treatment. 

Article  25.  Should  a ship  arrive  bringing  in  any  considerable 
quantities  immigrant  laborers  coming  under  contract  to  perform 
labor  in  mining,  industrial  or  farming  enterprises,  the  executive 
power  may  permit  their  debarkation  in  ports  other  than  those 
ordinarily  designated  for  the  admission  of  immigrants,  all  the 


Appendix  A. 


757 


precautions  adopted  for  this  purpose  by  the  executive  power 
in  order  to  insure  the  execution  of  this  law  being  observed. 

^ ^ -K'  ^ ^ ^ 

Article  29.  Immigrant  laborers  shall  be  subjected  to  a period 
of  observation  of  about  ten  days  should  there  be  among  their 
number  diseased  persons  or  persons  suspected  of  being  afflicted 
with  any  contagious  disease,  or  should  such  disease  have  broken 
out  on  the  voyage,  and  in  general  in  every  other  case  where  the 
executive  power  shall  prescribe  such  steps. 

Article  30.  If,  during  the  period  of  observation  it  shall  be 
found  that  any  of  the  immigrants  are  excludable  under  article 
3,  they  shall  be  reembarked  as  provided  by  article  18. 

Article  31.  Immigrants  who  are  not  vaccinated  shall  be  vac- 
cinated in  the  sanitary  station. 

Article  32.  Sanitary  stations  belonging  to  immigration  com- 
panies, together  with  the  employees  thereof,  shall  be  subject  to 
the  orders  and  under  the  supervision  of  the  sanitary  officer  of 
the  port. 

Article  33.  The  costs  necessary  for  the  maintenance  of  sani- 
tary stations  of  immigration  companies,  their  repair,  their  fit- 
tings, their  use  and  their  material,  the  up-keep  of  the  immigrants, 
medical  treatment  and  the  expenses  of  a physician  and  of  the 
necessary  personnel  shall  be  met  by  the  company. 

Chapter  4.  Of  the  Admission  of  Travelers  Entering  by  Land. 

Article  34.  The  admission  of  travelers  entering  by  land  shall 
be  governed  by  the  following  rules : 

I.  The  examination  prescribed  by  article  2 shall  take  place 
on  board  the  train. 

II.  The  inspector  of  immigration  shall  request  of  each  passen- 
ger on  information  blanks  the  information  required  by  paragraph 
1 of  article  12. 

III.  In  order  not  to  unduly  retard  passage  of  trains  the  agents 
shall  be  sent  inside  the  car  to  examine  passengers  and  to  ask  them 
for  the  necessary  information. 

IV.  "When  travelers  do  not  arrive  by  train  they  may  be  de- 
tained at  the  point  of  entry  for  a time  sufficient  to  examine  them 
and  request  the  information  prescribed  by  paragraph  1 of  ar- 
ticle 12. 


758 


Appendix  A. 


V.  Trains  carrying  immigrant  laborers  exclusively  or  in 
which  there  are  more  than  thirty  such  passengers  shall  be 
stopped  at  the  time  of  their  entrance  into  National  territory  in 
order  that  the  examination  of  the  immigrants  may  take  place  at 
once  and  that  the  necessary  information  concerning  them  may  be 
obtained. 

VI.  Aliens  afflicted  with  contagious  diseases  shall  be  at  once 
detained  and  they  shall  be  permitted  to  enter  only  after  furnish- 
ing the  bond  prescribed  by  article  4. 

VII.  Aliens  suspected  of  being  afflicted  with  a contagious 
disease  shall  be  permitted  to  remain  in  a place  accessible  to  entry 
in  isolation  and  under  observation  provided  that  they  guarantee 
the  payment  of  their  maintenance. 

Travelers  who  shall  make  false  declarations  shall  be  punished 
administratively  with  a fine  of  from  five  to  twenty-five  pesos  or 
shall  be  imprisoned  from  three  to  fifteen  days. 

Article  35.  The  inspector  of  immigration  is  empowered  to 
designate  the  places  and  hours  of  arrival  of  travelers  who  do  not 
come  by  railroad,  and  the  hours  of  arrival  of  special  trains  of 
travelers. 

An  arrival  which  shall  take  place  at  a time  and  place  not 
authorized  shall  be  penalized;  the  conductors,  mechanics,  engi- 
neers, or  other  employees  in  charge  of  the  train  and  those  who 
have  ordered  its  entrance  shall  be  punished  with  a fine  of  one 
hundred  to  one  thousand  pesos,  or  imprisonment,  or  both,  as  the 
judge  may  direct. 

If  the  mode  of  entry  is  not  by  railroad  travelers  who  shall  have 
entered  unlawfully  shall  be  punished  with  a fine  of  from  ten  to 
one  hundred  pesos  or  with  imprisonment  which  may  extend  to 
ten  months. 

Chapter  5.  Administrative  Jurisdiction  in  Matters  Touching 

Immigration. 

Article  36.  Everything  relative  to  immigration  shall  be  with- 
in the  jurisdiction  of  the  Minister  of  the  Interior  who  shall  ad- 
minister the  service  through  the  following  officers  and  bodies: 

I.  Inspectors  of  immigration  who  shall  be  assigned  to  the  ports 
and  frontier  posts  at  which  the  entrance  of  passengers  coming 
from  abroad  is  authorized. 


Appendix  A. 


759 


II.  Auxiliary  agents  who,  under  the  conditions  prescribed  by 
the  regulations  and  decisions  of  the  Executive  and  under  the  or- 
ders and  authority  of  the  appropriate  inspector  shall  assist  him 
in  his  work  and  perform  the  duties  assigned  to  them. 

III.  Boards  of  immigration  established  in  each  place  to  which 
inspectors  are  assigned  and  composed  of  three  persons  specially 
designated  or,  if  there  is  no  special  designation,  of  the  health 
officer,  the  collector  of  customs  or  the  chief  of  the  customs  di- 
vision and  another  Federal  employee  agreed  upon  by  the  two 
foregoing. 

Article  37.  In  places  where  there  is  no  inspector  of  immigra- 
tion the  health  officer  shall  fulfill  the  duties  which  belong  to  him. 

Article  38.  The  decisions  of  inspectors  regarding  admission, 
exclusion,  or  expulsion  shall  be  passed  upon  by  the  Board  of  Im- 
migration at  the  request  of  the  party  himself,  the  master  of  the 
vessel  or  his  co-signatory,  or  the  representative  of  the  company 
which  shall  have  brought  the  passenger,  or  by  the  health  officer. 

Decisions  shall  be  rendered  in  writing  signed  by  the  inspector 
or  by  the  members  of  the  Board  rendering  them. 

Article  39.  It  shall  be  the  duty  of  the  inspectors  of  immigra- 
tion to  impose  the  administrative  penalties  prescribed  by  this 
law.  Their  decisions  shall  be  reviewed  by  the  Minister  of  the  In- 
terior who  shall  be  empowered  to  affirm,  reverse  or  modify  them. 

If  the  penalties  are  pecuniary,  their  immediate  payment  shall 
be  required  and  the  amount  shall  be  deposited  pending  their 
review  by  the  Minister. 

If  the  penalty  is  imprisonment,  the  guilty  party  shall  be  im- 
mediately detained  and  the  Minister  of  the  Interior  shall  be  in- 
formed thereof  by  telegram. 

Chapter  6 Criminal  jurisdiction  as  Applicable  to  this  Law. 

Article  40.  The  Federal  tribunals  shall  have  the  power  to  take 
jurisdiction  of  all  cases  of  violation  of  this  law. 

Article  41.  In  places  where  there  is  no  district  judge  the 
judges  of  general  jurisdiction  shall,  with  the  aid  of  the  Federal 
justice,  take  charge  of  the  preliminary  proceedings  and  shall  be 
empowered  to  issue  the  formal  order  of  imprisonment  and,  with 
the  authorization  of  the  competent  Federal  tribunal,  take  the 
proper  steps  to  render  the  case  justiciable.  For  this  purpose  and 


760 


Appendix  A. 


in  every  case  they  shall  notify  the  judge  of  the  proper  district 
whenever  they  shall  assume  jurisdiction  of  a case  of  this  nature. 

NATAL. 

Coolie  Law  {Summary). 

The  law  creates  the  office  of  Protector  of  Indian  immigrants. 
Before  leaving  India  every  immigrant  is  required  to  contract  to 
serve  some  Natal  employer  or  be  allotted  to  serve  by  the  Protec- 
tor. The  periods  of  service  shall  be  five  years;  and  nine  hours 
a day. 

Regulations. 

Any  immigrant  found  a mile  or  more  from  the  residence  of 
his  employer  without  a permit  is  liable  to  arrest  unless  on  his 
way  to  lodge  a complaint  with  the  Protector.  The  Protector  may 
order  his  return  to  his  employer  and  if  he  declines  to  return  he  is 
subject  to  fine  and  imprisonment.  For  ingress,  egress  and  gener- 
al intercourse  in  the  state  an  immigrant  must  have  an  official 
pass. 

Restrictions  on  Immigrants. 

An  immigrant  guilty  of  disobedience,  fraud,  deception,  adul- 
tery, seduction,  abduction,  gross  insolence,  damage  to  property, 
neglect  of  work,  absence  without  permission,  mistreatment  of  live 
stock  or  dereliction  in  the  discharge  of  other  lawful  duties  to  his 
employer  or  the  state  will  be  subject  to  fine  and  imprisonment.  At 
the  expiration  of  the  term  of  indenture  every  Indian  immigrant 
and  his  children  attaining  a contractual  age  must  either  return  to 
India,  enter  a new  indenture,  or  secure  official  license,  at  a cost 
of  one  pound  sterling,  to  remain  in  the  Colony. 

Restrictions  on  Employers. 

Any  employer  failing  or  neglecting  to  provide  for  the  health, 
comfort  and  wages,  of  indentured  immigrants,  or  their  necessities 
in  event  of  illness  or  infirmity;  or  failing  to  discharge  his  full 
duty  by  them ; or  who  is  guilty  of  mistreating  such  immigrants 
shall  be  liable  to  fine  and  imprisonment.  Any  person  harboring 
immigrants  to  whose  services  he  is  not  entitled,  obstructing  of- 
ficials in  discharge  of  their  duty,  sending  or  taking  immigrants 


Appendix  A. 


761 


out  of  the  colony,  or  inducing  them  to  leave  is  amenable  to  the 
law.  No  person  is  permitted  to  employ  an  unindentured  immi- 
grant unless  he  has  a license  to  remain. 

Eights  and  Exemptions. 

During  indenture  immigrants  are  exempt  from  levy  upon  their 
wages  or  goods  and  from  imprisonment  for  debt.  Upon  the  term 
of  indenture  being  completed  or  cancelled  immigrants  are  en- 
titled to  a certificate  of  discharge  from  the  Protector  and  to 
come  within  the  law  relating  to  Master  and  Servants. 

An  Act  of  Natal  to  ‘ ‘ Place  Closer  Restrictions  on  Immigration  ’ ’. 

For  public  safety  and  security  Natal  forbids  admission  into 
the  life  of  the  state  of  any  person  defined  by  law  asa“  prohibited 
immigrant.’ ’ This  includes  persons  unable,  by  reason  of  de- 
ficiency of  education,  to  draft  an  application  for  admission  in 
some  European  language;  persons  insane  or  idiotic;  persons 
without  visible  means  of  support  and  likely  to  become  a pauper 
or  public  charge ; persons  afflicted  with  a loathsome  or  dangerous 
contagious  disease ; persons  convicted,  sentenced  and  unpardoned 
of  treason,  murder  or  other  crime  involving  moral  turpitude  and 
imprisonment;  persons  guilty  of  prostitution  or  of  participating 
in  the  proceeds  of  prostitution ; and  persons  deemed  undesirable 
by  reason  of  reliable  official  information  received. 

Penalty. 

A prohibited  immigrant  found  within  Natal  without  a pass 
will  be  deemed  to  have  contravened  the  law  and  will  be  liable 
upon  conviction,  to  six  months’  imprisonment  with  hard  labor 
and  expulsion.  If  admitted  under  a misapprehension  and  suf- 
ficient evidence  is  adduced  within  a year  to  establish  his  status 
he  may  be  adjudged  a prohibited  immigrant  who  is  amenable  to 
the  law. 

Alternative. 

A person  appearing  to  be  a 1 1 prohibited  immigrant”  may  be 
admitted  upon  depositing  one  hundred  pounds  sterling  and  by 
securing  within  a week  an  official  certificate  of  exemption  from 
this  law.  Failing  to  obtain  a certificate  his  deposit  will  be  sub- 
ject to  forfeiture  and  he  will  become  subject  to  the  general  pro- 
visions of  law. 


762 


Appendix  A. 


Disabilities. 

Prohibited  immigrants  will  not  be  permitted  to  pursue  a vo- 
cation, work  at  a trade,  exercise  the  franchise,  acquire  property 
or  enjoy  other  civil  rights. 

Deportation. 

Destitute  persons  refused  admission  shall  be  returned  to  a port 
in  or  near  their  own  country  and  provided  with  sufficient  money 
for  a month’s  subsistence  after  landing. 

Persons  of  TJnsound  Mind. 

Any  person  instrumental  in  bringing  an  insane  or  idiotic  per- 
son to  Natal  without  official  authority  is  liable  for  the  cost  of 
his  maintenance  while  in  the  Colony  in  addition  to  any  other 
penalty. 

Passes. 

A prohibited  immigrant  may  be  granted  passes  for  the  purpose 
of  a temporary  visit  or  of  embarking  at  a port  for  some  other 
country.  He  must  satisfy  the  officials  of  the  integrity  of  his  in- 
tention by  answering  all  inquiries  and  depositing  ten  pounds 
sterling  as  a guaranty.  The  maximum  limit  of  a “visiting” 
pass  is  six  weeks  and  that  of  embarkation  extends  to  the  earliest 
available  opportunity  to  exit  for  destination  stated  in  the  pass. 
Deposits  are  returnable  before  he  leaves  the  state.  The  penalty  for 
failure  to  observe  in  good  faith  the  limitations  on  passes  works  a 
forfeiture  of  the  deposit  and  other  prescribed  punishment. 

Contraventions. 

Any  person  will  be  deemed  a violator  of  this  law  who  assists 
any  prohibited  immigrant  to  enter  Natal,  who  aids  or  abets  in  any 
contravention  of  this  statute,  who  resists  or  obstructs  the  execu- 
tion of  this  law,  or  who  wilfully  disobeys  or  disregards  any  law- 
ful order  or  regulation  under  the  act. 

THE  NETHERLANDS. 

Law  of  August  13,  1849.  ( Regulating  the  admission  and  expul- 

sion of  Aliens.)1 

Article  1.  All  foreigners  who  have  sufficient  means  of  sub- 

1 See  Tripels,  Policital  Code  for  the  Netherlands,  'Maestricht,  1889. 


Appendix  A. 


763 


sistence  or  who  are  capable  of  acquiring  them  by  work  shall  be 
admitted  into  the  Netherlands  in  the  methods  provided  by  the 
four  articles  next  following. 

Article  2.  Admission  shall  be  granted  on  a foreign  or  regular 
passport.  Passports  are  regular  when  they  are : 

(a)  issued  by  the  government  of  the  country  to  which  the 
foreigner  belongs,  or  in  the  name  of  that  government; 

(b)  Viseed  for  the  journey  by  a diplomatic  or  consular  rep- 
resentative of  The  Netherlands  accredited  to  that  government ; 

(c)  not  prescribed. 

Article  3.  The  possession  of  other  letters  of  safe  conduct  shall 
likewise  give  rise  to  lawful  admission  provided  that  it  is  set  out 
therein  who  the  holder  is,  whence  he  comes,  and  for  what  purpose 
he  visits  the  country. 

Article  4.  Foreigners  may  even  be  admitted  by  merely  pre- 
senting themselves  for  admission  and  furnishing  information  of 
their  identity,  whence  they  come,  and  for  what  purpose  they  seek 
to  enter  the  country. 

Proof  of  identification  signed  by  two  or  more  persons  who  are 
known  to  the  police  may  be  required  in  these  cases. 

Articles  5.  Permission  to  enter  may  be  granted  by  the  Chief 
of  Police  of  the  district  at  places  on  the  border  and  at  the  place 
of  first  arrival,  and  by  granting  a passport  for  the  purposes  of 
travel  and  sojourn  in  return  for  the  deposit  of  the  passport  or 
other  letters  of  safe  conduct  which  the  alien  may  present,  or  with- 
out such  deposit. 

Article  6.  Passports  for  the  purposes  of  travel  and  sojourn 
shall  be  valid  for  three  months.  This  period  can  be  extended  by 
the  Chief  of  Police  at  the  place  where  the  foreigner  presents  him- 
self. 

The  extension  of  these  passports  can  only  be  refused  through 
failure  to  fulfill  the  conditions  required  by  article  1. 

When  the  appropriate  police  officer  shall  be  of  opinion  that  the 
extension  of  the  passport  issued  for  purposes  of  travel  and  so- 
journ should  not  be  granted,  he  shall  at  once  submit  his  refusal 
to  the  consideration  of  the  judge  of  the  district  for  further  action 
as  provided  by  article  11. 

Article  7.  Foreigners  shall  be  required  to  exhibit  their  pass- 
ports issued  for  the  purposes  of  travel  and  sojourn,  their  foreign 
passports  or  other  letters  of  safe  conduct  in  their  possession  to 


764 


Appendix  A. 


the  police  or  the  owners  of  the  houses  in  which  they  take  up  their 
lodgings,  should  such  exhibition  be  required. 

Article  8.  Foreigners  who  are  found  within  the  country  with- 
out passports  for  the  purposes  of  travel  or  sojourn  shall  have  an 
opportunity  to  obtain  such  passport  from  the  Chief  of  Police  of 
the  district  in  which  they  may  be  by  observing  the  rules  estab- 
lished for  the  admission  of  incoming  aliens. 

Article  9.  Foreigners  who  have  not  been  admitted  and  who 
have  not  been  able  to  obtain  a passport  issued  for  purposes  of 
travel  or  sojourn  shall,  if  they  are  found  within  the  country,  be 
conducted  across  the  frontier. 

Article  10.  Foreigners  who  have  been  admitted  shall  only  be 
expelled  by  virtue  of  an  order  of  the  judge  of  the  district  of  the 
place  where  they  are  staying  or  upon  Our  order. 

Article  11.  The  judge  of  the  district  can  only  issue  an  order 
of  expulsion  in  case  the  conditions  set  out  in  article  1 have  not 
been  complied  with,  and  after  having  granted  the  foreigner  a 
hearing,  or  after  he  shall  have  been  duly  cited  before  him. 

A record  shall  be  kept  of  such  hearing. 

If  the  foreigner  makes  no  appearance,  mention  of  this  fact 
shall  be  made  in  the  order  of  expulsion. 

The  reason  for  the  expulsion  shall  be  contained  in  said  order. 

The  district  judge  shall  send  a copy  of  the  proceedings  and  of 
the  order  of  expulsion  to  Our  commissioner  in  the  province. 

We  reserve  the  right  to  annul  the  order  of  expulsion  or  its  exe- 
cution. 

It  shall  nevertheless  be  executory  in  spite  of  an  appeal  taken 
to  Ourselves  or  to  the  High  Court  as  provided  by  article  20. 

Article  12.  A foreigner  who  shall  prove  to  be  a menace  to  the 
public  safety  shall  be  subject  to  expulsion  at  Our  order. 

Any  foreigner  whose  expulsion  We  have  ordered  shall  be  forced 
to  leave  the  Kingdom  within  a fortnight  after  the  receipt  of  such 
order. 

During  this  time  he  shall  be  entitled  to  the  right  of  appeal 
granted  by  article  20  of  the  present  law  and  pending  the  same 
may  be  held  in  custody. 

If  he  does  not  take  advantage  of  this  right  or  if  the  High  Court 
shall  find  his  grounds  of  appeal  to  be  unfounded,  the  order  of 
expulsion  shall  be  executed  immediately. 


Appendix  A. 


765 


If  possible  he  shall  be  sent  out  at  any  point  of  the  frontier 
which  he  may  indicate. 

Article  13.  We  reserve  the  right  to  select  for  foreigners  who 
may  constitute  a menace  to  the  public  safety,  a designated  place 
in  the  Kingdom  where  they  shall  reside,  or  to  forbid  them  to  take 
up  their  residence  in  certain  parts  of  the  Kingdom. 

The  Royal  orders  to  which  this  article  and  article  12  refer 
shall  be  communicated  to  the  Chambers  of  the  States  General. 

Article  14.  Foreigners  who  within  five  years  after  the  ren- 
dition of  the  order  of  expulsion  by  a district  judge  shall  be  again 
found  within  the  country  without  being  able  to  show  that  they 
have  been  allowed  to  enter,  shall  be  punished  by  imprisonment 
of  from  eight  days  to  three  months. 

Article  15.  Foreigners  who  in  defiance  of  an  order  of  expul- 
sion issued  by  Us  shall  return  to  the  Netherlands  without  said 
order  having  been  annulled,  shall  be  punished  with  imprisonment 
of  from  three  to  six  months. 

In  cases  provided  by  this  and  the  preceding  article  those 
sentenced  shall  be  expelled  after  having  served  their  sentence. 

Article  19.  The  provisions  of  the  present  law  shall  not  apply 
to  foreigners  who,  in  conformity  with  article  8 of  the  Civil  Code, 
shall  have  taken  the  status  of  Netherlanders  and  who  shall  be  con- 
considered  nationals  for  the  effect  of  the  present  law,  or  to  a resi- 
dent foreigner  who  is  married  to  or  shall  have  been  married 
to  a woman  who  is  a Netherland  subject  by  whom  he  shall  have 
had  one  or  more  children  born  in  the  Netherlands. 

Article  20.  All  those  who  may  have  been  subjected  to  the 
operation  of  this  law  and  who  may  claim  to  be  natives  of  the 
Netherlands  or  that  they  come  within  the  exceptions  of  the  pre- 
ceding article  may,  but  on  these  grounds  only,  appeal  to  the 
High  Court  as  provided  by  article  12,  and  in  that  case  the  delay 
provided  in  that  article  shall  be  granted  in  order  that  they  shall 
be  given  the  opportunity  to  show  that  this  law  is  not  applicable 
to  their  case. 

The  High  Court  shall  have  jurisdiction  of  these  questions  and 
its  decision  rendered  after  hearing  de  officio  shall  be  final. 


766 


Appendix  A. 


NEW  ZEALAND. 

{Summary) . 

“An  Act  to  Place  certain  Restrictions  on  Immigration  into 

New  Zealand.” 

A law  was  enacted  by  the  government  of  New  Zealand,  in  1899, 
designed  to  exclude  undesirable  immigrants  and  to  elevate  the 
standards  of  accession  to  the  civic  life  of  the  state.  The  Act  pro- 
vides that  it  shall  be  unlawful  for  any  persons  included  within  the 
meaning  of  “prohibited  immigrant”  to  land  in  the  territory  of 
New  Zealand. 

Prohibited  Immigrants. 

A “prohibited  immigrant”  is  defined  to  be  an  idiot  or 
insane  person ; any  person  afflicted  with  a dangerous  or 
loathsome  contagious  disease;  any  person  arriving  in  New  Zea- 
land within  two  years  after  the  termination  of  any  imprisonment 
for  an  offense,  not  of  a political  nature,  punishable  in  New  Zea- 
land by  death  or  imprisonment  for  two  or  more  years,  and  to 
whom  no  pardon  was  granted ; or  any  person  unwilling  or  unable, 
and  failing  to  write  and  sign  in  any  European  language  an  appli- 
cation for  admission  in  the  prescribed  form,  provided  he  shall 
have  the  right  of  final  appeal  to  a Stipendiary,  or  salaried. 
Magistrate. 

Exceptions. 

Any  person  not  diseased,  criminal,  insane  or  an  idiot  appearing 
to  be  a prohibited  immigrant  may  lawfully  land  on  condition 
that  he  deposit  in  advance,  with  an  agent  of  the  Government, 
the  sum  of  one  hundred  pounds  sterling,  and  obtain,  within  14 
days,  an  official  certificate  of  exemption  from  the  prohibition  of 
the  law.  Upon  specific  compliance  with  these  regulations  the  de- 
posit will  be  refunded,  but  failing  to  do  so  the  deposit  will  be  for- 
feited to  the  state  as  payment  of  the  fine  for  landing  as  a pro- 
hibited immigrant. 

Penalty. 

Every  prohibited  immigrant  unlawfully  landing  in  New 
Zealand  is  liable  to  a penalty  of  one  hundred  pounds,  removal 
from  the  state  and  detention  in  prison  or  custody  of  not  over  six 


Appendix  A. 


767 


months,  pending  removal.  Upon  payment  of  100  pounds  or  upon 
securing  two  sureties  of  fifty  pounds  each  that  he  will  leave  the 
state  within  one  month,  he  will  be  released  from  detention. 

Liability. 

If  prohibited  immigrants  are  trans-shipped  from  one  ves- 
sel to  another  for  the  purpose  of  bringing  them  to  New  Zealand 
both  vessels  will  be  liable  to  the  prescribed  penalty,  and  all  ves- 
sels may  be  detained  in  port  until  penalties  are  satisfied. 

Eights  after  Conviction. 

Upon  conviction  of  any  prohibited  immigrant  and  a fine  being 
decreed,  the  Court  may  order  the  time  of  payment  extended  to  a 
period  of  three  months  with  sufficient  security. 

Removal. 

For  the  removal  of  such  immigrant  his  passage  to  the  nearest 
port  of  his  own  country  or  to  his  original  home  may  be  contracted 
for;  and  if  destitute,  sufficient  money  shall  be  supplied  him  for 
maintenance  thirty  days  after  the  end  of  his  voyage. 

Third  Persons. 

Every  person  is  liable  to  a penalty  of  not  over  one  hundred 
pounds  who  wilfully  assists  in  any  evasion  or  contravention  of 
the  law.  And  in  addition  to  other  penalties  any  person  wilfully 
assisting  an  idiot  or  insane  person  to  enter  New  Zealand  shall 
be  liable  for  the  cost  of  maintenance  of  such  person  while  in  the 
State. 

Chinese. 

A special  act  governs  Chinese  exclusion.  Chinamen  leaving 
New  Zealand  after  registering  their  name  and  thumb  print  with 
the  Collector  of  Customs  may  return  within  four  years  by  satis- 
fying the  officials  of  their  identity. 

ROUMANIA. 

Law  of  April  7,  1881.  ( For  the  expulsion  of  suspicious  for- 

eigners.y 

Article  1.  A foreigner  with  his  domicile  and  residence  in 
Roumania  who,  by  his  actions,  shall,  during  his  stay  in  the 

1 See  Annuaire  de  legislation  etrang&re  de  1881,  p.  707. 


768 


Appendix  A. 


country  compromise  the  domestic  safety  of  the  State,  disturb 
the  public  tranquility  or  take  part  in  movements  having  for  their 
purpose  the  overthrow  of  social  or  political  order,  whether  in 
this  country  or  abroad,  shall  be  forced  by  the  Government  to 
leave  the  place  where  he  is  situated  to  reside  in  a locality  specially 
designated,  or  even  to  leave  the  country. 

Article  2.  The  ministerial  order  of  expulsion  issued  by  the 
council  of  ministers  or  the  order  by  which  a foreigner  is  directed 
to  take  up  a particular  place  of  residence  or  to  change  his  actual 
residence  shall  be  communicated  to  him  administratively  and  the 
grounds  therefor  shall  not  he  given.  There  shall  he  stated  therein 
the  period  within  which  the  alien  shall  act  upon  the  order  of  ex- 
pulsion or  change  of  residence  and  this  period  shall  not  be  less 
than  twenty-four  hours. 

Article  3.  On  receipt  of  the  order  of  expulsion  the  foreigner 
shall  designate  the  point  of  the  frontier  by  which  he  desires  to 
leave  the  country,  and  in  such  case  he  shall  be  given  an  itinerary 
in  which  the  stages  of  his  journey,  which  he  shall  adhere  to,  shall 
be  laid  down,  as  well  as  the  time  within  which  he  may  remain 
in  each  locality  until  reaching  the  frontier. 

In  case  of  violation  of  any  one  of  these  provisions  the  foreigner 
shall  be  escorted  out  of  the  country  by  the  police. 

Article  4.  The  government  may  likewise  order  the  expulsion 
of  a foreigner  who  shall  have  left  the  town  or  locality  where  he 
shall  have  been  specifically  ordered  to  take  up  his  abode. 

Article  5.  A foreigner  who,  subsequent  to  his  expulsion  from 
the  country,  shall  reenter  Roumanian  territory,  shall  be  imme- 
diately arrested  and  sentenced  to  imprisonment  of  from  five  days 
to  six  months.  At  the  expiration  of  his  sentence  he  shall  be  con- 
ducted to  the  frontier  without  being  allowed  the  privilege  of  des- 
ignating the  point  by  which  he  wishes  to  leave  the  country. 

Article  6.  A foreigner  who  has  just  entered  the  country  and 
who  has  not  a domicile,  or  fixed  place  of  residence,  shall,  within 
ten  days  of  his  arrival,  and  after  the  promulgation  of  the  present 
law,  obtain  a letter  of  free  sojourn  from  the  police  or  the  local 
authority  to  cover  the  time  during  which  he  desires  to  remain 
or  travel  in  the  country.  ****** 

Article  7.  An  attack  against  the  person  of  the  Head  of  a 
foreign  State  or  against  the  members  of  his  family,  when  this 


Appendix  A. 


769 


attack  constitutes  homicide,  assassination,  or  poisoning,  shall  not 

be  considered  a political  crime,  or  as  an  act  akin  to  such  a crime. 

/ 

RUSSIA. 

Law  of  May  26,  1903 . ( Regarding  the  Expulsion  of  For- 

eigners.)1 

Section  I. 

Article  1.  The  expulsion  of  foreigners  residing  in  Russia,  to- 
gether with  an  express  provision  against  their  return,  shall  issue 
from  the  Minister  of  the  Interior  with  the  exception  of  cases 
specially  provided  for  by  law.  In  the  case  of  orders  issued  by 
Governors  General  the  expulsion  shall  take  place  on  the  order  of 
the  Minister  of  War  or  of  the  Governor  General.  In  the  provin- 
ces and  frontier  districts  the  Governors  may  be  empowered  to  issue 
orders  of  expulsion  upon  request  submitted  to  His  Majesty  the 
Emperor  through  the  Committee  of  Ministers. 

Article  2.  Foreigners  sentenced  to  hard  labor  or  transporta- 
tion are  not  subject  to  expulsion.  Foreigners  sentenced  to  any 
other  penalty  which  may  deprive  them  of  their  liberty  can  only 
be  expelled  after  having  served  their  entire  sentence. 

Article  3.  Foreigners  subject  to  expulsion  (art.  1)  shall  leave 
Russia  within  the  time  set  forth  in  the  order  of  expulsion ; upon 
failure  to  do  so  they  shall  be  escorted  to  the  frontier  and  deliv- 
ered to  the  foreign  authorities  at  the  frontier  station. 

Article  4.  Foreigners  who  shall  have  failed  to  obey  a warrant 
of  expulsion  as  is  the  case  with  foreigners  who  have  been  ex- 
pelled and  who  have  voluntarily  returned,  are  no  longer  subject 
to  orders  of  expulsion;  they  shall  be  conducted  to  the  frontier 
under  escort  and  such  as  shall  have  returned  voluntarily  shall 
be  sent  back,  after  having  served  their  sentence  for  having  re- 
turned unlawfully. 

Article  5.  The  Minister  of  the  Interior  may  lend  his  aid  and 
assistance  to  foreigners  against  whom  orders  of  expulsion  have 
been  issued  and  who  have  not  the  necessary  means  to  depart. 

Article  6.  Before  expelling  under  escort  the  foreigner  against 
whom  a warrant  and  order  of  expulsion  has  been  issued,  the  Min- 
ister of  the  Interior  may,  if  he  thinks  fit,  enter  into  communica- 

1 See  Annuaire  de  legislation  etrangere  1903,  p.  561. 


770 


Appendix  A. 


tion  through  the  department  of  Foreign  Affairs  with  the  foreign 
government  in  order  that  the  latter  may  receive  the  foreigner 
who  has  been  expelled. 

Article  7.  Where  the  frontier  authorities  shall  have  refused 
to  receive  the  expelled  foreigner,  measures  shall  be  taken  with 
the  respective  foreign  government  in  order  that  the  foreigner 
who  has  been  expelled  may  be  received  by  it. 

Article  8.  Foreigners  whose  extradition  has  been  requested 
by  a foreign  government  on  insufficient  grounds,  shall  not  be  sub- 
ject to  expulsion  under  escort. 

Article  9.  Foreigners  whose  expulsion  has  not  taken  place 
(a)  through  their  failure  to  leave  Russia  in  cases  where  they  are 
not  subject  to  expulsion  under  escort  (article  8)  ; (b)  through 
the  refusal  on  the  part  of  the  frontier  authorities  to  receive  them 
in  cases  where  expulsion  shall  have  taken  place  prior  to  the  pre- 
liminary pourparlers  with  the  foreign  government;  (c)  where 
the  foreign  government  has  refused  to  receive  them,  or  where 
such  government  shall  not  have  consented  to  do  so  within  the 
period  of  one  year  from  the  opening  of  the  pourparlers , such 
foreigners  may,  on  the  order  of  the  Minister  of  the  Interior,  be 
interned  in  a locality  specified  for  this  purpose  by  a special  regu- 
lation of  the  Committee  of  Ministers  ratified  by  H.  I.  at  the 
suggestion  of  the  Minister  of  the  Interior. 

Article  10.  Foreigners  who  shall  have  returned  to  Russia  un- 
lawfully after  having  been  twice  expelled  shall  be  either  expelled 
under  military  escort  by  order  of  the  Minister  of  the  Interior,  or 
subjected  to  a forced  residence  in  one  of  the  localities  to  which 
article  9 refers. 

Article  11.  Foreigners  subjected  to  forced  residence  by  vir- 
tue of  the  aforesaid  provisions  (articles  9 and  10)  shall  be  as- 
signed by  order  of  the  local  Governor  to  the  agricultural  or  mu- 
nicipal districts;  they  shall  be  subjected  to  the  surveillance  of 
the  police  and  shall  not  leave  the  district  assigned  to  them. 

Article  12.  Foreigners  subjected  to  forced  residence  shall 
pay  the  taxes  and  contributions  imposed  upon  the  rural  or  mu- 
nicipal classes  in  which  they  are  incorporated.  But  in  any  event 
they  shall  not  be  free  to  take  part  in  business  or  devote  them- 
selves to  any  particular  industry  even  by  paying  the  proper 
license,  unless  they  are  authorized  to  do  so  by  the  Government. 

After  the  expiration  of  a period  of  five  years  dating  from  the 


Appendix  A. 


771 


day  of  their  assignment  such  foreigners  may  petition  the  author- 
ities to  become  members  of  such  rural  or  municipal  class  and  to 
be  fully  admitted  thereto  with  the  consent  of  the  Ministers  of 
Finance  and  of  the  Interior  after  having  become  naturalized  Rus- 
sian subjects.  From  the  time  of  such  admission  on  such  persons 
shall  enjoy  all  rights  with  which  members  of  such  rural  or  mu- 
nicipal class  are  endowed,  they  shall  be  free  from  all  police  sur- 
veillance and  shall  be  allowed  to  change  their  domicile  in  ac- 
cordance with  the  precepts  of  the  general  law. 

Article  13.  Foreigners  subjected  to  forced  domicile,  upon  the 
refusal  on  the  part  of  the  country  whence  they  come,  or  on  the 
part  of  the  foreign  authorities  at  the  frontier  posts  where  they 
present  themselves  to  receive  them,  cannot  be  expelled  from  Rus- 
sia until  the  foreign  government  in  question  consents  to  receive 
them. 

Article  14.  The  relatives  and  children  of  foreigners  subjec- 
ted to  forced  residence  are  authorized  to  accompany  them  at 
their  own  expense  without  undergoing  the  restrictions  to  which 
the  former  are  subject. 

Section  II. 

# # * # * # * 

Foreigners  who  shall  come  to  Russia  equipped  with  regular 
passports  can  only  be  expelled  on  the  order  of  the  competent 
authority.  In  the  case  of  foreigners  whose  presence  is  not  to  be 
tolerated  on  account  of  their  suspicious  or  reprehensible  conduct 
or  from  any  other  cause,  the  Governors,  in  cases  where  they 
themselves  lack  the  authority  to  apply  the  regulations  regarding 
the  expulsion  of  foreigners  shall  before  proceeding  to  expel  refer 
the  matter  to  the  Minister  of  the  Interior  or  to  the  appropriate 
Governor-General  in  a given  case. 

Section  III. 

* # # * # # * 

Foreigners  who  shall  have  lost  their  nationality  or  shall  not 
have  the  certificates  required  for  their  sojourn  in  Russia  shall  be 
permitted  if  they  are  not  in  a condition  to  prove  their  identity  to 
obtain  from  the  Governors  with  the  authorization  of  the  Minister 
of  the  Interior  provisional  certificates  entitling  them  to  remain 
the  necessary  length  of  time  for  them  to  become  Russian  subjects. 


772 


Appendix  A. 


Section  IV. 

# * # * * # # 

The  foreigner  who  shall  arrive  at  the  frontier  without  a pass- 
port duly  issued  shall  be  sent  back  by  the  local  police  authorities 
without  any  previous  authorization  to  this  effect  being  required 
from  higher  authority.  This  provision  has  no  application  to 
those  residing  on  the  frontier  districts  who  cross  the  border  with- 
out providing  themselves  with  passports  and  for  the  purpose  of 
carrying  on  their  daily  affairs. 

# # # # * * # 

Section  VII. 

# # # # * # * 

A foreigner  who  has  been  lawfully  expelled  from  Russia  shall 
if  he  reenters  without  authority  be  subject : 

To  eight  to  sixteen  months  imprisonment  and  to  the  depriva- 
tion of  certain  rights  and  privileges  mentioned  in  Article 
50  of  the  Code  of  Criminal  Punishments. 

The  punishment  to  be  inflicted  is  by  one  degree  more  severe 
where  the  foreigner  has  been  previously  once  convicted. 

# * # # * * * 

Section  XL 

The  costs  incident  to  expulsion  or  to  the  reconcentration  of 
foreigners  (Article  6 and  9 of  the  1st  section  of  the  present  law) 
shall  be  met  from  the  year  1904  by  an  appropriation  of  3,000 
roubles  credited  to  the  budget  of  the  Treasury ; in  1903  these  ex- 
penses shall  be  assigned  to  the  credits  of  the  budget  of  the  Min- 
ister of  the  Interior  for  the  maintenance  of  persons  arrested 
and  expelled  by  the  military  and  police  authority. 

Section  XII. 

The  Minister  of  the  Interior  shall  draw  up  the  form  of  (a), 
the  order  of  expulsion  informing  the  foreigner  of  the  order  to 
leave  Russia  with  a statement  of  the  consequences  which  will 
follow  failure  to  observe  this  order;  (b)  the  receipt  certifying  to 
the  fact  that  this  order  has  been  presented,  which  shall  be  signed 
by  the  foreigner;  and  (c)  the  pass  to  the  frontier  issued  to  the 
foreigner  who  shall  leave  Russia  in  obedience  to  the  foregoing 
order. 


Appendix  A. 


773 


SOUTHERN  RHODESIA. 

Immigration  Restriction  Ordnance  {Summary.) 

To  promote  internal  peace  and  order  and  to  preserve  high 
standards  of  health  and  citizenship  the  Colony  adopted  measures 
to  restrict  the  admission  of  such  aliens  as  would  be  an  impedi- 
ment to  progress. 

The  laws  exclude  any  person  not  provided  with  means  of 
securing  support ; any  person  likely  to  become  an  object  of  char- 
ity; any  person  convicted  of  murder,  rape,  theft,  fraud,  perjury, 
forgery,  robbery  or  arson  when  the  circumstances  of  the  offence 
render  him  undesirable ; any  person  insane  or  idiotic ; any  person 
of  unsound  mind  incapable  of  managing  his  own  affairs ; any  per- 
son receiving  any  proceeds  of  prostitution ; any  person  of  deficient 
education  incapable  of  drafting  a satisfactory  application  for 
admission  in  some  European  language ; and  any  person  regarded 
as  undesirable  from  official  information  transmitted  by  a British 
or  South  African  Colony. 

Exemptions. 

The  laws  exempt  the  King’s  military  and  naval  forces;  ac- 
credited representatives  of  sovereign  states ; the  wives  and  minor 
children  of  admitted  immigrants;  agricultural  and  domestic  ser- 
vants, skilled  artisans,  mechanics,  workmen,  or  miners  whom  the 
officials  deem  eligible  for  admission;  persons  domiciled  in  South 
Africa;  persons  engaged  to  serve  a resident  employer  of  repute 
for  a reasonable  time  at  an  adequate  wage,  provided  that  they 
are  not  laboring  under  prohibited  disabilities  except  lack  of 
means  or  education. 


SWITZERLAND, 

Canton  of  Geneva. 

Law  of  October  14,  1905 
CHARTER  1. 

General  Provisions. 

Article  1.  The  administrative  police  power,  insofar  as  con- 
cerns the  sojourn  and  establishment  of  foreigners  in  the  Canton 

1 See  Annuaire  de  legislation  etrangers  1905,  p.  413. 


774 


Appendix  A. 


is  exercised  by  the  department  of  Justice  and  Police  under  the 
authority  and  surveillance  of  the  Council  of  State. 

Article  2.  Every  person  without  distinction  as  to  age,  sex  or 
condition  not  a native  of  the  Canton  of  Geneva  shall,  if  he  wishes 
to  reside  there,  ask  for  a permit  of  sojourn  or  settlement  within 
eight  days  following  his  arrival.  These  permits  shall  be  issued 
by  the  Departments  of  Justice  and  Police. 

Article  3.  Persons  staying  at  an  inn,  a hotel  or  a pension 
and  those  who  are  the  guests  at  houses  of  relatives  or  friends  are 
not  subject  during  the  first  three  months  of  their  stay  to  the  ob- 
ligation of  taking  out  a permit;  without  prejudice  however,  to 
the  regulations  providing  for  the  registration  of  travellers  on  the 
books  of  inns  and  pensions  and  to  the  observance  of  Art.  3 of  the 
Law  of  July  16,  1881  providing  for  a Bureau  of  registration. 

Article  4.  Laborers  of  both  sexes  residing  in  the  neighboring 
communities  of  the  Canton  who  come  for  the  purpose  of  under- 
taking agricultural  work  at  stated  periods  are  not  obliged  to  take 
out  the  regular  permit  if  the  length  of  their  stay  is  not  to  exceed 
six  weeks. 

Article  5.  Persons  not  natives  of  the  Canton  who  are  called 
upon  to  make  a short  stay  therein  as  well  as  those  who  are  there 
for  the  purpose  of  obtaining  regular  papers  shall  be  given  a per- 
mit of  provisionary  sojourn  upon  filing  a document  of  identity 
duly  adjudged  to  be  sufficient  (birth  certificate,  certificate  of 
baptism,  of  marriage,  etc.) 

The  cost  of  this  permit  shall  be  fifty  centimes  per  month. 

Article  6.  Every  person  not  a native  of  the  Canton  shall  ob- 
tain pending  the  deposit  of  the  regular  papers  of  legitimation 
showing  his  nationality  and  his  right  to  return  as  well  as  that  of 
his  family,  to  his  place  of  origin,  a permit  of  sojourn  or  estab- 
lishment as  he  may  elect,  subject  to  the  provisions  of  the  fore- 
going article. 

Article  7.  The  following  persons  shall  take  out  a permit  of 
establishment  (business  permit) : 

A.  He  who,  being  domiciled  in  the  Canton  possesses  landed 
property  there; 

B.  He  who  carries  on,  on  his  own  account,  an  industry  or  pro- 
fession ; 

C.  He  who  fulfills  a public  charge  or  function  or  who  occu- 
pies a permanent  position  in  a particular  enterprise. 


Appendix  A. 


775 


D.  He  who  has  a private  establishment  in  the  Canton. 

E.  He  who  after  having  enjoyed  during  his  minority  the 
benefits  of  a business  permit  issued  to  his  parents  shall  come  of 
age; 

Article  8.  The  regular  permit  is  issued  in  the  form  of  a book- 
let the  cost  of  which  is  twenty-five  centimes.  It  shall  contain  a 
statement  of  the  nature  of  the  papers  deposited  and  the  period 
of  their  validity. 

Article  9.  The  price  of  a permit  of  sojourn  is  fixed  at  one 
franc  fifty  per  year  for  one  person  (without  prejudice  to  the  im- 
position of  the  hospital  tax). 

Article  10.  The  price  of  a permit  of  establishment  (business 
permit)  is  six  francs  (without  prejudice  to  the  imposition  of  the 
hospital  tax).  Except  as  provided  in  Article  16  its  period  is  not 
limited. 

Article  11.  The  permit  of  establishment  issued  to  the  head 
of  a family  applies  to  his  wife  and  minor  children  residing  with 
him. 

Article  12.  A person  furnished  with  a permit  of  sojourn  or 
establishment  is,  whether  unmarried,  widowed,  or  divorced,  ob- 
liged in  case  he  marries  to  notify  the  Bureau  of  Permits  of  So- 
journ or  Establishment  of  his  change  of  situation  within  one 
month  following  the  day  of  his  marriage. 

Likewise  within  one  month  he  shall  inform  the  said  Bureau  of 
the  birth  of  his  children  and  cause  such  birth  to  be  inscribed  in 
his  booklet. 

Article  13.  Each  person  provided  with  a permit  of  sojourn 
or  establishment  must  in  case  of  change  of  domicile  and  within 
a period  of  one  month  inform  the  Bureau  of  Permits  of  Sojourn 
of  such  change,  and  cause  it  to  be  inscribed  upon  his  booklet. 

Article  14.  All  persons  subject  to  obtaining  a permit  of  so- 
journ or  establishment  must  present  themselves  to  the  authori- 
ties when  requested  to  do  so. 

Article  15.  In  districts  other  than  the  City  of  Geneva  per- 
mits are  issued  without  expense  to  those  entitled  thereto  through 
the  municipal  authorities  in  charge  of  registration  for  such  pur- 
poses. 

Article  16.  All  permits  expire  ipso  facto  on  the  day  when  the 
papers  filed  cease  to  be  regular. 

Article  17.  The  income  from  permits  of  sojourn  and  estab- 


776 


Appendix  A. 


lishment  is  divided  each  year  under  the  law  regulating  the  bud- 
get between  the  state,  the  districts,  and  the  general  hospital  ser- 
vice. Insofar  as  concerns  the  districts,  distribution  shall  be  made 
in  proportion  to  the  number  of  permits  issued  by  each. 

Article  18.  In  cases  where  a foreigner  demanding  a permit 
of  sojourn  or  establishment  cannot  furnish  regular  papers  or 
proof  of  the  right  of  return  in  him  and  his  family  to  the  country 
of  origin,  the  Department  of  Justice  and  Police  may  grant  him 
a permit  of  sojourn  or  establishment  under  the  following  con- 
ditions : 

Those  seeking  it  shall  establish  their  identity  by  producing 
a birth  certificate,  a marriage  certificate,  or  other  similar  proof. 
They  shall  moreover  deposit  in  the  State  Treasury  either  in  se- 
curities or  money  one  thousand  francs  for  individuals  and  two 
thousand  francs  for  a family.  In  exceptional  cases  the  Council 
of  State  may  reduce  this  sum  to  the  fourth  part  thereof  or  even 
fail  to  require  the  deposit. 

This  deposit  shall  be  paid  back  on  return  of  the  permit  of  so- 
journ or  establishment  in  case  of  final  departure  of  the  depositor 
from  the  Canton,  the  deposit  of  regular  papers,  his  decease,  or 
his  naturalization. 

Chapter  II. 

Article  19.  Subject  to  the  provisions  of  Article  45  of  the 
Federal  Constitution  with  regard  to  the  right  of  establishment 
of  Swiss  citizens  in  a Canton  other  than  that  of  their  origin, 
the  police  may  refuse  or  revoke  the  permit  of  sojourn  or  estab- 
lishment in  the  following  cases: 

(1)  If  the  misconduct  or  dishonesty  of  the  foreigner  or  his 
family  justifies  such  a measure,  or  if  his  presence  is  obnoxious  to 
the  public  weal ; 

(2)  If  the  foreigner  is  not  able  to  support  himself  or  his 
family ; 

(3)  If  the  papers  on  the  production  of  which  the  sojourn 
shall  have  been  authorized  shall  cease  to  be  regular ; 

(4)  Or  if  after  having  been  granted  his  papers  of  sojourn 
or  establishment,  the  Department  of  Justice  or  Police  shall  dis- 
cover facts  concerning  the  foreigner  which,  if  discovered  in  time, 
would  have  justified  the  refusal  of  his  papers ; 


Appendix  A. 


777 


(5)  If  lie  fails  to  carry  out  the  obligations  imposed  upon  him 
by  the  present  law. 

Article  20.  The  Council  of  State  by  virtue  of  its  administra- 
tive power  has  always  the  right  to  expel  from  the  Canton  for- 
eigners whose  presence  there  may  be  injurious  to  the  interests 
of  the  country  or  threaten  the  security  of  the  state. 

Article  21.  Orders  of  expulsion  shall  contain  the  grounds 
therefor  and  the  offences  which  give  rise  to  it  shall  be  specified 
in  the  order. 

Chapter  III. 

Article  22.  An  appeal  to  the  Council  of  State  from  every 
decision  of  the  Department  of  Justice  and  Police  involving  a re- 
fusal or  revocation  of  a permit  of  sojourn  or  establishment  is 
available. 

Article  23.  These  appeals  are  considered  by  a Commission 
of  three  Counsellors  of  State.  It  shall  be  the  duty  of  this  Com- 
mission to  give  the  appellant  a hearing  and  to  report  the  same 
at  a meeting  of  the  Council. 

The  appellant  shall  be  informed  of  the  charges  brought  against 
him. 

If  he  so  requests  he  may  introduce  matters  of  defence  at  the 
hearing. 

He  shall  be  allowed  to  offer  in  evidence  to  the  Commission 
all  memorials,  defences  and  explanations  which  he  may  judge 
useful  to  his  cause. 

Article  24.  The  effect  of  the  appeal  is  to  suspend  the  execu- 
tion of  the  order.  Nevertheless  in  cases  of  emergency  the  order 
of  expulsion  may  be  of  a nature  to  be  at  once  carried  into  execu- 
tion ; in  this  case  it  must  be  so  stated  by  the  head  of  the  Depart- 
ment of  Justice  and  Police  on  the  original  order  as  well  as  on  the 
copy  issued  to  the  foreigner  expelled.  Where  appeal  is  taken 
against  an  order  which  is  to  be  executed  at  once,  the  appellant 
may  be  heard  by  a representative. 

Chapter  IV. 

Article  25.  Any  person  not  a native  of  the  Canton  to  whom 
a permit  of  sojourn  has  been  finally  refused  and  who  shall  still 
remain  in  the  Canton  or  who  shall  reenter  without  the  permission 
of  the  Department  of  Justice  and  Police  shall  be  subject  to  a 


Appendix  A. 


penalty  which  may  reach  an  imprisonment  of  fifteen  days  and 
a fine  of  fifty  francs.  Where  the  offender  is  a recidivist  the 
penalties  above  set  forth  may  be  increased  to  double  the  amount 
of  the  maximum  above  mentioned. 

Article  26.  Nevertheless  in  the  above  mentioned  case  the 
President  of  the  Department  of  Justice  and  Police  may  cause  the 
offender  to  be  conducted  to  the  frontier  without  submitting  him 
to  a judicial  trial. 

Article  27.  The  following  persons  shall  be  subject  to  the  im- 
position of  a fine  of  not  more  than  fifty  francs: 

(1)  Any  person  not  a native  of  the  Canton  provided  with  a 
permit  of  sojourn  or  establishment  who  shall  change  his  domicile 
without  making  the  declaration  prescribed  in  Article  13  of  the 
present  law; 

(2)  Every  person  not  a native  of  the  Canton  who  shall  dwell 
there  without  being  provided  with  a permit  of  sojourn  or  es- 
tablishment when  such  is  required  by  law; 

(3)  Every  person  not  a native  of  the  Canton  provided  with 
a permit  of  sojourn  who  shall  have  failed  to  renew  it  within  one 
month  after  its  expiration ; 

(4)  Every  person  not  a native  of  the  Canton  provided  with 
a permit  of  sojourn  or  establishment  who  shall  not  have  caused 
it  to  be  amended  within  the  month  following  the  day  of  his  mar- 
riage or  who  within  the  same  period  shall  not  have  announced 
the  birth  of  his  child. 

Article  28.  He  who  sublets  a lodging  to  a person  not  a native 
of  the  Canton  or  who  takes  into  his  service  such  a person  shall 
within  fifteen  days  notify  the  Bureau  of  Permits  of  Sojourn  if 
the  said  person  shall  not  be  provided  with  a permit  of  sojourn 
of  establishment. 

Inn-keepers  and  boarding  house  keepers  who  shall  continue 
to  lodge  foreigners  beyond  the  expiration  of  the  term  of  three 
months  are  under  the  obligation  of  designating  them  to  the  Bur- 
eau of  Permits  of  Sojourn  if  they  are  not  provided  with  a per- 
mit of  sojourn  or  of  establishment. 

He  who  shall  have  taken  into  his  service  a person  to  whom  the 
provisions  of  Article  4 of  the  present  law  applies  shall  at  the 
expiration  of  six  weeks  notify  the  Bureau  of  Permits  of  Sojourn 
if  this  person  is  not  provided  with  a permit  of  sojourn  or  of 
establishment. 


Appendix  A. 


779 


Those  who  offend  these  provisions  are  subject  to  a fine  of  not 
more  than  two  francs  for  each  month  which  shall  have  passed 
after  such  declaration  should  have  been  made,  but  such  fine  shall 
not  exceed  twenty-four  francs. 

Article  29.  The  Police  Court  shall  have  jurisdiction  over  the 
violations  of  the  present  law. 

TRANSVAAL. 

AN  ACT 

To  place  restriction  on  Immigration  into  this  Colony  to  provide 
for  the  removal  therefrom  of  prohibited  immigrants  and 
other  persons  and  to  establish  and  maintain  an  Immigra- 
tion Department. 

(. Assented  to  15th  August,  1907.) 

BE  IT  ENACTED  by  the  King's  Most  Excellent  Majesty  by 
and  with  the  advice  and  consent  of  the  Legislative  Council  and 
the  Legislative  Assembly  of  the  Transvaal  as  follows: — 

1.  The  Peace  Preservation  Ordinance  1903  shall  be  and  is 
hereby  repealed;  provided  that  no  such  repeal  shall  affect  or 
abridge  any  powers  or  jurisdiction  by  the  Asiatic  Law  Amend- 
ment Act  of  1907  conferred  for  the  purpose  of  carrying  out  such 
Act;  but  the  said  Ordinance  shall  for  all  the  purposes  of  sucl* 
Act  be  deemed  to  remain  of  full  force  and  effect. 

2.  In  this  Act  and  in  any  regulation  made  thereunder  un- 
less inconsistent  with  the  context : 

“department"  shall  mean  the  Immigration  Department 
established  and  maintained  under  the  provisions  of  this  Act ; 

“Governor"  shall  mean  the  officer  for  the  time  being  ad- 
ministering the  government  of  this  Colony  acting  by  and 
with  the  advice  of  the  Executive  Council; 

“imprisonment"  shall  mean  imprisonment  with  or  with- 
out hard  labor  as  the  court  sentencing  an  offender  to  im- 
prisonment may  direct; 

“magistrate"  shall  include  a resident  magistrate  and  an 
assistant  resident  magistrate  of  any  district  of  the  Colony; 

“Minister"  shall  mean  the  Colonial  Secretary  or  such 
other  Minister  to  whom  the  Governor  may  from  time  to  time 
assign  the  carrying  out  of  this  Act; 


780 


Appendix  A. 


“minor”  shall  mean  any  person  under  the  age  of  six- 
teen years; 

“police  officer”  shall  mean  any  member  of  a police  force 
lawfully  established  in  this  Colony; 

“prohibited  immigration”  shall  mean  and  include  any  of 
the  following  classes  of  persons  desiring  to  enter  or  entering 
this  Colony  after  the  date  of  the  taking  effect  of  this  Act; 

(1)  any  person  who  when  asked  whether  within  or  out- 
side this  Colony  by  a duly  authorized  officer  shall  be  unable 
through  deficient  education  to  write  out  (from  dictation  or 
otherwise)  and  sign  in  the  characters  of  a European  lan- 
guage an  application  for  permission  to  enter  this  Colony  or 
or  such  other  document  as  such  officer  may  require;  provi- 
ded that  for  the  purposes  of  this  sub-section  Yiddish  shall  be 
accepted  as  a European  language;  provided  further  that 

(a)  if  the  Minister  publish  a notice  in  the  Gazette  that 
arrangements  have  been  made  with  the  government  of  any 
country  regulating  the  admission  to  this  Colony  of  the  sub- 
jects or  citizens  of  such  country,  such  subjects  or  citizens 
shall  not  while  such  notice  is  in  force  be  required  to  comply 
with  the  provisions  of  this  sub-section ; 

(b)  the  Minister  shall  not  issue  any  such  notice  unless 
such  arrangements  have  been  sanctioned  by  resolution  of 
both  Houses  of  Parliament; 

(c)  any  such  notice  shall  cease  to  have  effect  as  soon  as 
it  is  cancelled  by  further  notice  of  the  Minister  in  the 
Gazette. 

(2)  Any  person  who  has  not  in  his  possession  or  at  his 
disposal  means  to  support  himself  for  a reasonable  time 
wtihin  this  Colony  or  who  is  likely  to  become  a public  charge 
if  he  were  allowed  to  enter  therein ; 

(3)  any  prostitute  or  person  living  on  the  earnings  of 
prostitution  or  procuring  women  for  immoral  purposes; 

(4)  any  person  who  at  the  date  of  his  entering  or  at- 
tempting to  enter  this  Colony  is  subject  or  would  if  he  en- 
tered this  Colony  be  subject  to  the  provisions  of  any  law  in 
force  at  such  date  which  might  render  him  liable  either  at 
such  date  or  thereafter  if  found  therein  to  be  removed  from 
or  to  be  ordered  to  leave  this  Colony  whether  on  conviction 
of  an  offence  against  such  law  or  for  failure  to  comply  with 


Appendix  A. 


781 


its  provisions  or  otherwise  in  accordance  with  its  provisions ; 
provided  that  such  conviction  be  not  the  result  of  the  com- 
mission by  such  person  elsewhere  than  in  this  Colony  of  an 
offence  for  which  he  has  received  a free  pardon; 

(5)  any  person  who  is  a lunatic  within  the  meaning  of 
the  Lunacy  Proclamation  1902  or  any  amendment  thereof; 

(6)  any  person  who  is  a leper  or  is  suffering  from  such 
infectious  or  contagious  disease  of  a loathsome  or  dangerous 
character  as  may  from  time  to  time  be  prescribed  by  regu- 
lation ; 

(7)  any  person  who  owing  to  information  officially  re- 
ceived by  the  Minister  from  any  Secretary  of  State  or  from 
a member  of  any  colonial  government  (whether  British  or 
foreign)  or  through  diplomatic  channels  from  an  officer 
of  any  foreign  state  is  deemed  by  the  Minister  to  be  an  un- 
desirable ; 

(8)  any  person  who  the  Minister  has  reasonable  grounds 
for  believing  would  be  dangerous  to  the  peace  order  and 
good  government  of  this  Colony  if  he  entered  therein;  but 
shall  not  include 

(a)  members  of  His  Majesty’s  regular  forces; 

(b)  the  officers  and  crew  of  any  public  ship  of  a foreign 
state ; 

(c)  any  person  who  is  duly  accredited  to  this  Colony 
by  or  under  the  authority  of  His  Majesty  or  of  the  govern- 
ment of  a foreign  state  together  with  his  wife,  family  and 
servants ; 

(d)  any  person  who  has  served  in  any  of  His  Majesty’s 
volunteer  forces  in  South  Africa  and  has  received  a good 
discharge  and  who  does  not  come  within  the  scope  of  sub- 
sections (3)  (4)  (5)  (6)  (7)  or  (8)  of  the  definition  of 
‘ ‘ prohibited  immigrant  ’ ’ ; 

(e)  the  wife  or  minor  child  of  any  person  who  is  not  a 
‘ ‘ prohibited  immigrant  ’ ’ ; 

(f)  any  European  person  who  has  been  at  any  time  law- 
fully resident  within  this  Colony  and  who  has  not  under 
the  provisions  of  any  law  been  removed  from  or  ordered  to 
leave  this  Colony; 

(g)  any  Asiatic  who  is  eligible  for  or  has  obtained  a cer- 
tificate of  registration  under  the  Asiatic  Law  Amendment 


782 


Appendix  A. 


Act  1907  and  who  does  not  come  within  the  scope  of  sub- 
sections (3)  (4)  (5)  (6)  (7)  or  (8)  of  the  definition  of 
‘ ‘ prohibited  immigrant  ’ ’ ; 

(h)  descendants  of  the  aboriginal  races  of  Africa  south 
of  the  Equator  who  do  not  come  within  the  scope  of  sub- 
sections (3),  (4),  (5),  (6),  (7)  or  (8)  of  the  definition  of 
‘ ‘ prohibited  immigrant  ’ ’ ; 

(i)  European  persons  who  are  agricultural  or  domestic 
servants,  skilled  artisans,  mechanics,  workmen  or  miners 
who  are  able  to  produce  a certificate  signed  by  the  Agent- 
General  of  this  Colony  in  England  or  by  an  officer  in  Eng- 
land or  elsewhere  appointed  for  the  purpose  by  the  Gover- 
nor, to  the  effect  that  the  person  named  therein  has  been  en- 
gaged to  serve  immediately  on  arrival  in  this  Colony  an  em- 
ployer therein  of  repute  at  an  adequate  remuneration  and 
for  a reasonable  period  of  time ; provided  that  such  persons 
do  not  come  within  the  scope  of  any  sub-section  of  the  defin- 
ition of  “ prohibited  immigrant’ ’ other  than  sub-section  (2). 

“Regulation”  shall  mean  any  regulation  made  under  sec- 
tion fifteen  of  this  Act. 

3.  (1)  The  Governor  may  establish  and  maintain  out  of 
moneys  voted  by  Parliament  for  the  purpose  a department  to  be 
known  as  the  “Immigration  Department”  which  shall  be  un- 
der the  control  of  the  Minister  and  in  charge  of  such  officer  as 
he  may  from  time  to  time  appoint. 

(2)  The  function  of  the  department  shall  be  the  per- 
formance of  all  work  whether  within  or  outside  this  Colony 
necessary  for  or  incidental  to  the  prevention  of  the  entrance 
into  the  Colony  of  prohibited  immigrants  or  their  removal 
therefrom  and  the  carrying  out  of  any  powers  or  duties 
that  may  be  specially  conferred  or  imposed  on  it  by  this 
Act  or  by  regulation. 

(3)  The  Governor  may  from  time  to  time  appoint  and 
remove  such  officers  as  he  may  think  necessary  or  expedient 
to  assist  in  the  administration  of  the  department  who  shall 
have  such  powers  and  perform  such  duties  within  or  out- 
side such  Colony  as  may  be  conferred  upon  them  by  this 
Act  or  by  regulation. 

4.  The  Governor  may  from  time  to  time  enter  into  agreement 
with  the  government  of  any  colony  or  territory  in  South  Africa 


Appendix  A. 


783 


for  the  doing  of  such  acts  or  things  as  are  necessary  or  expedient 
for  the  carrying  out  of  the  objects  and  purposes  of  this  Act. 

5.  Every  prohibited  immigrant  entering  into  or  found  with- 
in this  Colony  shall  be  guilty  of  an  offence  and  shall  be  liable 
on  conviction 

(1)  to  a fine  not  exceeding  one  hundred  pounds  or  in 
default  of  payment  to  imprisonment  for  a period  not  ex- 
ceeding six  months  or  to  both  such  fine  and  such  imprison- 
ment; and 

(2)  to  be  removed  at  any  time  from  the  Colony  by  war- 
rant under  the  hand  of  the  Minister  and  pending  such  re- 
moval to  be  detained  in  such  custody  as  may  by  regulation 
be  proscribed;  provided  that 

(a)  such  prohibited  immigrant  may  be  discharged  from 
such  detention  if  he  find  two  approved  sureties  in  this  Col- 
ony (each  in  the  sum  of  one  hundred  pounds)  for  his  leav- 
ing the  Colony  within  one  month; 

(b)  if  such  prohibited  immigrant  be  sentenced  to  impris- 
onment, such  imprisonment  shall  terminate  as  soon  as  he  is 
removed  from  the  Colony. 

6.  Any  person  who 

(a)  is  convicted  after  the  date  of  the  taking  effect  of  this 
Act  of  a contravention  of  sections  three , thirteen  or  twenty- 
one  of  the  Immorality  Ordinance  1903  or  any  amendment 
of  such  sections;  or 

(b)  is  deemed  by  the  Minister  on  reasonable  grounds 
to  be  dangerous  to  the  peace  order  and  good  government  of 
this  Colony  if  he  remain  therein;  or  having  been  ordered 
under  any  law  to  leave  this  Colony  fails  to  comply  with  the 
terms  of  such  order; 

may  be  arrested  and  removed  from  this  Colony  by  warrant  un- 
der the  hand  of  the  Minister  and  pending  removal  may  be  de- 
tained in  such  custody  as  may  be  prescribed  by  regulation ; pro- 
vided that  no  such  person  as  in  paragraph  (b)  hereof  described 
shall  be  removed  from  this  Colony  except  on  the  order  of  the 
Governor ; provided  further  that  every  such  person  arrested  shall 
be  discharged  from  custody  unless  an  order  be  made  by  the  Gov- 
ernor for  his  removal  from  this  Colony  within  ten  days  after 
the  date  of  his  arrest. 


784 


Appendix  A. 


7.  Any  person  who 

(1)  wilfully  aids  or  abets  a prohibited  immigrant  in 
entering  or  remaining  in  this  Colony;  or 

(2)  willfully  aids  or  abets  a person  ordered  to  be  re- 
moved under  section  six  in  remaining  in  this  Colony;  or 

'(3)  enters  into  or  purports  to  enter  into  a contract  as 
employer  with  any  person  outside  this  Colony  with  intent 
that  the  provisions  of  this  Act  be  evaded  or  at  the  time  of 
entering  into  or  purporting  to  enter  into  such  contract  shall 
be  unable  to  fulfill  his  part  thereof  or  has  no  reasonable  ex- 
pectation of  being  so  able ; or 

(4)  uses  or  attempts  to  use  any  certificate  issued  under 
paragraph  (i)  of  the  classes  of  persons  excluded  from  the 
definition  of  “prohibited  immigrant’ ’ unless  he  be  the  law- 
ful holder  of  such  certificate;  or 

(5)  forges  or  uses,  knowing  the  same  to  be  forged,  any 
document  purporting  to  be  such  certificate 

shall  be  guilty  of  an  offence  and  shall  be  liable  on  conviction  to 
a fine  not  exceeding  one  hundred  pounds  or  in  default  of  pay- 
ment to  imprisonment  for  a period  not  exceeding  six  months  or 
to  both  such  fine  and  such  imprisonment. 

8.  No  prohibited  immigrant  shall  be  entitled  to  obtain  a 
license  to  carry  on  in  this  Colony  any  trade  or  calling  or  to  ac- 
quire therein  any  interest  in  land  whether  leasehold,  freehold 
or  other  interest ; and  any  such  license  (if  obtained)  or  any  con- 
tract, deed  or  other  document  by  which  such  interest  is  acquired 
in  contravention  of  this  section  shall  on  conviction  of  such  im- 
migrant under  section  jive  of  this  Act  be  null  and  void. 

9.  Every  person  found  in  this  Colony  who  is  reasonably  sus- 
pected of  being  a prohibited  immigrant  may  be  arrested  without 
warrant  by  any  magistrate,  justice  of  the  peace,  police  officer  or 
officer  of  the  department  and  shall  as  soon  as  possible  be  brought; 
before  a court  of  resident  magistrate  to  be  dealt  with  according 
to  law. 

10.  No  prohibited  immigrant  shall  be  exempt  from  the  pro- 
visions of  this  Act  or  allowed  to  remain  in  this  Colony  by  reason 
only  that  he  had  not  been  informed  that  he  could  not  enter  this 
Colony  or  that  he  may  have  been  allowed  to  enter  through  over- 
sight or  owing  to  the  fact  being  undiscovered  that  he  was  a pro- 
hibited immigrant. 


Appendix  A. 


785 


11.  Any  person  ordered  to  be  removed  from  this  Colony  un- 
der this  Act  and  any  other  person  who  shall  have  been  convicted 
under  section  seven  of  aiding  or  abetting  him  in  entering  or  re- 
maining in  the  Colony  in  contravention  to  this  Act  shall  be 
liable  to  pay  all  expenditure  incurred  by  the  government  in  car- 
rying out  such  removal  whether  from  the  Colony  or  South  Africa 
or  in  the  detention  within  the  Colony  or  elsewhere,  of  any  per- 
son pending  his  removal;  and  the  amount  of  such  expenditure 
on  production  to  the  Sheriff  of  the  certificate  of  an  officer  of  the 
department  stating  the  items  and  total  amount  of  such  expendit- 
ure shall  be  recovered  by  execution  on  the  property  within  the 
Colony  of  the  person  so  liable  in  manner  provided  for  execution 
levied  under  a judgment  of  the  Supreme  Court;  and  the  pro- 
ceeds of  such  execution  shall  be  paid  by  the  Sheriff  to  the  Treas- 
urer, who  after  deduction  of  the  amount  of  expenditure  aforesaid 
and  the  costs  of  execution,  shall  remit  the  balance  to  the  person 
so  liable  or  to  any  person  appointed  by  him  to  receive  the  same. 

12.  (1)  It  shall  be  the  duty  of  every  keeper  or  person  hav- 
ing the  management  of  a place  used  as  an  hotel,  boarding-house, 
lodging-house  or  other  place  wherein  persons  receive  sleeping 
accomodation  for  money  or  valuable  consideration  to  cause  to  be 
kept  a book  in  which  every  person  immediately  he  first  receives 
such  accomodation  shall  enter  his  name  and  place  from  which  he 
last  came. 

(2)  Every  such  book  shall  be  opened  to  the  inspection 
of  any  police  officer  or  officer  of  the  department  at  all  reason- 
able times. 

(3)  Any  person  failing  to  comply  with  the  requirements 
of  this  section  or  obstructing  or  preventing  any  such  officer 
in  carrying  out  his  powers  thereunder  or  making  any  false 
entry  in  such  book  shall  be  guilty  of  an  offence  and  shall 
be  liable  on  conviction  to  a fine  not  exceeding  twenty  pounds 
or  in  default  of  payment  to  imprisonment  not  exceeding  one 
month  or  to  both  such  fine  and  such  imprisonment. 

13.  The  burden  of  proving  that  a person  has  not  entered  or 
remained  in  this  Colony  in  contravention  of  this  Act  or  any 
regulation  shall  in  any  prosecution  for  such  contravention  lie 
upon  the  accused  person. 

14.  Every  court  of  resident  magistrate  shall  have  jurisdiction 


786 


Appendix  A. 


to  impose  the  maximum  penalties  for  all  contraventions  of  this 
Act  or  of  any  regulation. 

15.  The  Governor  may  from  time  to  time  make,  alter  or  rescind 
regulations  not  inconsistent  with  the  provisions  of  this  Act  for 
all  or  any  of  the  following  purposes : — 

(a)  prescribing  the  powers  and  duties  of  officers  of  the 
department ; 

(b)  for  preventing  the  entrance  of  prohibited  immigrants 
into  this  Colony; 

(c)  for  the  removal  from  this  Colony  of  persons  ordered 
under  this  Act  to  be  removed  therefrom; 

(d)  for  the  detention  pending  removal  of  persons  ordered 
under  this  Act  to  be  removed  from  the  Colony  ; 

(e)  prescribing  the  diseases  which  are  infectious  or  con- 
tagious for  the  purposes  of  sub-section  (6)  of  the  definition 
of  “prohibited  immigrant”; 

(f)  prescribing  the  forms  of 

(i)  the  certificate  mentioned  in  paragraph  (i)  of  the 
classes  of  persons  excluded  from  the  definition  of  “pro- 
hibited immigrant”; 

(ii)  the  warrants  to  be  issued  by  the  Minister  under 
sections  five  and  six ; 

(iii)  the  book  to  be  kept  under  section  twelve; 

(g)  prescribing  the  conditions  under  which  prohibited 
immigrants  may  be  allowed  to  pass  through  this  Colony 
while  journeying  to  a place  outside  the  same; 

(h)  generally  for  the  better  carrying  out  of  the  objects 
and  purposes  of  this  Act; 

and  may  by  any  such  regulations  prescribe  penalties  for  contra- 
ventions thereof  not  exceeding  a fine  of  one  hundred  pounds  or 
in  default  of  payment  imprisonment  for  a period  not  exceeding 
six  months  or  both  such  fine  and  such  imprisonment. 

16.  This  Act  may  be  cited  for  all  purposes  as  the  Immigrants 
Restriction  Act  1907  and  shall  not  take  effect  unless  and  until 
the  Governor  shall  proclaim  in  the  Gazette  that  it  is  His  Majes- 
ty ’s  pleasure  not  to  disallow  the  same  and  thereafter  it  shall  take 
effect  upon  such  date  as  the  Governor  shall  notify  by  procla- 
mation. 


Appendix  A. 


787 


Regulations  for  purposes  of  the  Immigrants  Restriction  Act, 

1907. 

(As  amended  by  Government  Notice  No.  1289  of  1909). 

Regulations. 

Interpretations  of  Terms. 

1.  In  these  Regulations,  unless  inconsistent  with  the  context: 

“Act”  shall  mean  the  Immigrants  Restriction  Act,  1907, 

and  any  amendment  thereof; 

‘ ‘ Chief  Immigration  Officer  ’ ’ shall  mean  the  officer  appoint- 
ed by  the  Minister  under  sub-section  (1)  of  section  three 
of  the  Act  to  be  in  charge  of  the  Immigration  Department ; 

“Immigration  officer”  shall  mean  the  Chief  Immigration 
Officer  and  any  other  officer  of  the  Immigration  Depart- 
ment appointed  under  sub-section  (3)  of  section  three  of 
the  Act, 

and  any  term  defined  for  the  purposes  of  the  Act  by  section  two 
thereof  shall  when  used  in  these  Regulations  have  the  same 
meaning  as  is  assigned  to  it  for  the  purposes  of  the  Act. 

2.  If  any  immigration  officer  or  police  officer  shall  become 
aware  of  any  circumstances  constituting  reasonable  grounds  for 
suspecting  that  any  person  has  entered  the  Colony  who  is  a pro- 
hibited immigrant,  or  that  any  person  has  in  any  other  manner 
contravened  the  Act  or  these  Regulations,  he  shall  forthwith 
notify  such  circumstances  to  the  public  prosecutor  of  his  district, 
in  order  that  all  necessary  legal  proceedings  may  be  taken  against 
such  person.  Under  section  nine  of  the  Act,  an  immigration  of- 
ficer or  police  officer  may  arrest  without  warrant  any  person 
found  in  this  Colony  who  is  reasonably  suspected  of  being  a 
prohibited  immigrant  and  bring  him,  as  soon  as  possible,  before 
a court  of  resident  magistrate,  to  be  dealt  with  according  to  law. 

3.  (1)  For  the  purpose  of  paragraph  (2)  of  the  definition 
of  “prohibited  immigrant”  in  the  Act,  the  beneficial  ownership 
of  the  sum  of  twenty  pounds  sterling  by  any  person  shall  be 
deemed  to  support  such  person  for  a reasonable  time  in  this 
Colony;  the  possession  of  a promise  in  writing  from  some  em- 
ployer of  repute  in  this  Colony  of  immediate  employment  of  such 
person  on  his  arrival  therein  shall  be  deemed  sufficient  to  render 


788 


Appendix  A. 


such  person  unlikely  to  become  a public  charge  if  he  were  allowed 
to  enter  this  Colony. 

(2)  It  shall  be  lawful  for  any  immigration  officer  to  demand 
from  any  person  reasonably  suspected  of  being  a prohibited  im- 
migrant within  the  meaning  of  the  said  paragraph  (2)  evidence 
that  he  is  the  beneficial  owner  of  such  sum  aforesaid ; or  that  he 
is  in  possession  of  such  promise  in  writing  as  aforesaid ; and  fail- 
ure on  the  part  of  such  person  to  furnish  such  evidence  to  such 
officer  on  demand  shall  be  deemed  to  be  circumstances  constitut- 
ing reasonable  grounds  for  suspecting  that  he  is  a prohibited  im- 
migrant. 

4.  Any  person  who  is  reasonably  suspected  of  being  such  pro- 
hibited immigrant  as  is  described  in  paragraph  (5)  and  (6)  of 
the  definition  of  prohibited  immigrant  in  the  Act  may  be  de- 
tained by  an  immigration  officer;  such  detention  may  be  enforced 
at  such  place  as  to  the  immigration  officer  appears  convenient, 
having  regard  to  the  particular  circumstances,  for  the  purpose 
of  being  medically  examined  for  a period  not  exceeding  twenty- 
for  hours. 

5.  The  diseases  mentioned  in  this  regulation  shall  be  such 
infectious  or  contagious  diseases  as  are  described  in  paragraph 
(6)  of  the  definition  of  “prohibited  immigrant”  in  the  Act, 
that  is  to  say:  leprosy,  syphilis,  plague,  and  smallpox. 

6.  Save  as  in  regulation  four  is  otherwise  provided,  any 
person  detained  in  custody  under  any  provision  of  the  Act  or 
these  Regulations  shall  be  detained  at  any  police  charge  office 
or  at  any  place  at  which  persons  under  arrest  are  habitually 
placed  while  awaiting  trial. 

7.  (1)  Any  person  not  being  a prohibited  immigrant  who 

(a)  is  desirous  of  entering  this  Colony  for  the  first  time; 
or 

(b)  has  left  or  is  leaving  this  Colony  and  is  desirous  of 
re-entering  the  same 

and  who  has  reason  to  believe  that  on  entering  or  re-entering 
or  attempting  to  enter  or  re-enter  he  may  be  suspected  of  being 
a prohibited  immigrant  and  thereby  be  subjected  to  incon- 
venience may  apply  to  the  Chief  Immigration  Officer  or  to  an 
immigration  officer  stationed  in  the  province  of  Mozambique  or 
in  any  Colony  or  Territory  adjoining  this  Colony  for  the  issue 
of  a passport. 


Appendix  A. 


789 


(2)  Any  such  officer  aforesaid  may,  in  his  absolute  dis- 
cretion, issue  or  refuse  such  passport,  and  if  he  shall  issue  it  may 
make  the  same  valid  on  or  after  a date  to  be  named  and  for  a 
period  to  be  specified  therein,  provided  that 

(a)  such  person  shall  have  furnished  him  with  his  signa- 
ture in  English  in  formed  handwriting,  and,  upon  de- 
mand made,  the  impressions  of  his  fingers  and  thumbs; 

(b)  such  person  shall  have  paid  a fee  of  two  shillings  and 
sixpence. 

(3)  The  holder  of  such  passport  shall  not  part  with  the 
possession  of  the  same  except  upon  the  demand  of  an  immigra- 
tion officer,  and  shall  surrender  such  passport  upon  demand  to 
an  immigration  officer  on  entering  the  Colony  or  to  the  Chief 
Immigration  Officer  at  Pretoria,  and  even  if  such  passport  he 
not  so  surrendered  it  shall  be  deemed  after  the  holder  has  en- 
tered the  Colony,  or  after  the  expiry  of  the  date  named  on  the 
passport,  to  be  invalid  for  all  purposes  whatsoever. 

(4)  Upon  the  surrender  of  such  passport  any  such  officer 
aforesaid  may  require  the  person  in  possession  of  the  same  to 
satisfy  him  as  to  his  identity  with  the  person  to  whom  it  was 
issued. 

(5)  A refusal  by  such  holder  to  surrender  such  passport  or 
a failure  on  such  surrender  so  to  satisfy  the  immigration  officer 
as  to  identity  shall  be  deemed  circumstances  constituting  reason- 
able grounds  for  suspecting  that  the  holder  or  surrenderer  is  a 
prohibited  immigrant. 

(6)  Every  such  passport  shall  be  in  the  form  set  forth  in 
Schedule  A hereto. 

8.  (1)  Whenever  a prohibited  immigrant  journeying  to  a 

place  outside  this  Colony  desires,  in  order  to  reach  such  place 
with  greater  celerity  or  convenience,  to  pass  through  this  Colony 
he  may  apply  to  the  Chief  Immigration  Officer  for  a travelling 
permit,  and  such  officer  may  issue  the  same  to  such  person;  pro- 
vided 

(a)  he  is  satisfied  of  the  bona  tides  of  the  applicant;  and 

(b)  the  applicant  furnishes  the  impressions  of  all  his 
fingers  and  thumbs; 

(c)  the  applicant  pays  a fee  of  one  pound  for  such  permit 
and  deposits  such  sum  not  exceeding  ten  pounds  as  the 
said  officer  may  require. 


790 


Appendix  A. 


Such  permit  shall  be  issued  upon  the  condition  that  the  holder 
thereof  shall  not  remain  in  the  Transvaal  after  a day  and  hour 
to  be  named  therein. 

(2)  At  the  border  station  or  other  place  of  departure  from 
the  Transvaal  he  shall  surrender  such  permit  to  the  immigration 
officer  thereat,  and  if  he  shall  have  satisfied  such  officer  of  his 
identity  and  that  he  has  complied  with  the  condition  of  such 
permit,  a refund  shall  be  made  to  him  by  such  officer  of  the 
amount  paid  as  aforesaid  by  way  of  deposit  upon  his  giving  a 
receipt  therefor.  If  the  holder  of  such  permit  shall  fail  to  com- 
ply with  such  requirement  and  condition  such  deposit  shall  be 
forfeited  to  the  Treasury. 

(3)  Every  such  permit  shall  be  in  the  form  set  forth  in 
Schedule  B hereto. 

9.  The  Chief  Immigration  Officer,  on  being  satisfied  that  any 
person  who  is  a prohibited  immigrant  desires  to  enter  or  pass 
through  this  Colony  for  the  purpose  of  pursuing  or  defending 
any  proceedings,  civil  or  criminal,  in  any  court  of  law  in  this 
Colony  or  elsewhere,  or  because  he  has  been  summoned  by  legal 
process  as  a witness  at  any  such  proceedings  or  because  his 
presence  is  necessary  or  expedient  on  any  matter  or  urgency, 
shall  issue  to  such  person,  free  of  charge,  a temporary  permit  in 
the  form  set  forth  in  Schedule  C hereto,  authorising  him  to 
enter  and  remain  in  the  Colony  for  such  period  and  at  such 
place  as  may  be  specified  therein ; no  such  permit  shall  be  issued 
unless  the  applicant  therefor  furnish  to  an  immigration  officer 
his  signature  in  English  in  formed  handwriting,  and,  upon 
demand  made,  the  impressions  of  his  fingers  and  thumbs;  and 
it  shall  be  a condition  of  such  permit  that  it  be  produced  on 
demand  to  an  immigration  officer  on  entering  the  Colony,  or  to 
the  Chief  Immigration  Officer  at  Pretoria,  and  that  the  holder 
thereof  shall  satisfy  any  such  officer  of  his  identity  with  the 
person  to  whom  it  was  issued.  On  or  before  the  date  or  expiry 
of  period  named  in  such  permit  the  holder  shall  surrender  the 
same  to  the  immigration  officer  at  the  place  of  departure  from 
this  Colony,  and,  even  if  it  be  not  surrendered  on  or  before  such 
date,  it  shall  be  deemed  after  such  date  invalid  for  all  purposes 
whatsoever. 


Appendix  A. 


791 


10.  The  certificate  to  be  given  to  any  European  person 
(being  an  agricultural  or  domestic  servant,  skilled  artisan,  mech- 
anic, workman,  or  miner)  to  the  effect  that  he  is  engaged  to 
serve  immediately  on  arrival  in  this  Colony  an  employer  of 
repute  at  an  adequate  remuneration  and  for  a reasonable  period 
of  time  shall  be  in  the  form  set  forth  in  Schedule  D hereto. 
No  such  certificate  shall  be  granted  unless  the  person  in  whose 
favour  the  same  is  issued  shall  furnish  to  the  Agent-General 
in  England  or  other  person  elsewhere  appointed  by  the  Governor 
to  issue  such  certificate  the  impressions  of  all  his  fingers  and 
thumbs,  and  it  shall  be  the  duty  of  the  holder  of  such  certificate 
to  produce  the  same  on  demand  to  an  immigration  officer,  and 
if  required  to  satisfy  such  officer  as  to  his  identity  with  the  per- 
son to  whom  such  certificate  was  issued. 

11.  Whenever  a prohibited  immigrant  convicted  under  section 
five  of  the  Act  has  been  sentenced  to  be  detained  pending  re- 
moval from  the  Colony,  and  is  authorised  to  be  discharged  from 
such  detention,  the  two  approved  sureties  for  his  leaving  the 
Colony  shall  execute  a bond  on  the  form  set  forth  in  Schedule  E 
to  these  Regulations;  such  sureties  shall  be  persons  approved  by 
the  Minister  or  by  the  Chief  Immigration  Officer. 

12.  (1)  If  at  any  time  any  certificate,  permit,  or  passport 
mentioned  in  these  Regulations  is  lost  or  destroyed,  the  person 
who  was  the  lawful  holder  thereof  shall  apply  to  the  Chief  Im- 
migration Officer  at  Pretoria  for  the  issue  to  him  of  a duplicate 
of  such  certificate,  permit,  or  passport;  such  officer  on  satisfying 
himself  that  such  certificate,  permit,  or  passport,  has  been  lost 
or  destroyed  may,  on  payment  of  a fee  of  one  pound,  issue  to 
the  applicant  such  duplicate  on  compliance  by  him  with  the 
same  conditions  as  by  these  Regulations  were  applicable  in  respect 
of  the  certificate,  permit,  or  passport  so  lost  or  destroyed. 

2.  Any  person  who  procures  of  attempts  to  procure  any 
such  duplicate  of  certificate,  permit,  or  passport  aforesaid  know- 
ing that  the  original  thereof  has  not  been  lost  or  destroyed  shall 
be  guilty  of  an  offence. 

13.  The  Chief  Immigration  Officer  may  cancel  any  certificate 
passport  or  permit  or  duplicate  thereof  issued  under  the  Act  of 
these  Regulations  on  being  satisfied  that  the  holder  thereof  has 
failed  to  comply  with  or  committed  a breach  of  the  conditions 
thereof;  and  thereupon  the  holder  of  such  certificate,  passport 


792 


Appendix  A. 


or  permit  or  duplicate  shall  be  deemed  not  to  possess  the  same 
as  from  the  date  and  hour  when  it  was  cancelled. 

14.  Any  warrant  which  may  be  issued  by  the  Minister  under 
section  five  of  the  Act  shall  be  in  form  set  forth  in  Schedule  F 
hereto  and  any  warrant  issued  by  the  Minister  under  section  six 
of  the  Act  shall  be  in  the  form  set  forth  in  Schedule  G hereto. 

15.  The  book  to  be  kept  under  section  twelve  of  the  Act  by 
every  keeper  or  person  having  the  management  of  a place  used 
as  a hotel,  boarding-house,  or  other  place  wherein  persons  re- 
ceive sleeping  accomodation  for  money  or  valuable  consideration 
shall  be  in  the  form  set  forth  in  Schedule  H hereto. 

16.  Any  fee  payable  under  these  Regulations  in  respect  of 
any  passport  or  permit  shall  be  noted  by  means  of  Transvaal 
revenue  stamps,  which  shall  be  affixed  to  such  passport  or  permit 
and  defaced  in  manner  prescribed  by  law  by  the  immigration 
officer  to  whom  such  fee  is  paid. 

17.  Any  person  who  forges  or  uses,  knowing  the  same  to  be 
forged,  any  passport  or  permit  issued  under  these  Regulations 
shall  be  guilty  of  an  offence. 

18.  Any  person  who  shall  resist  or  wilfully  obstruct  or  aid 
or  incite  any  other  person  to  resist  or  wilfully  obstruct  an  im- 
migration officer  in  the  execution  of  his  powers  or  duties  under 
these  Regulations  shall  be  guilty  of  an  offence. 

19.  Any  person  who  shall  fail  to  comply  with  any  provision 
of  these  Regulations,  or  otherwise  commit  an  offence  thereunder 
shall,  on  conviction,  in  addition  to  any  other  penalty  to  which  he 
may  be  liable  for  an  offence  under  the  Act,  be  liable  to  a fine 
not  exceeding  one  hundred  pounds,  or,  in  default  of  payment,  to 
imprisonment  for  a period  not  exceeding  six  months,  or  to  both 
such  fine  and  such  imprisonment. 

TRINIDAD,  WEST  INDIES. 

Immigration  Ordinance  {Summary). 

The  laws  governing  immigration  into  this  Colony  chiefly  con- 
template the  indenture  and  colonization  of  immigrants  for  ser- 
vice on  the  plantations  devoted  to  fruit  culture.  Therefore  de- 
tailed supervision  of  the  reciprocal  relations  between  employer 
and  employed  is  provided  for  in  order  to  insure  justice  to  all 
concerned. 


Appendix  A. 


793 


An  immigrant  is  defined  to  mean  “any  person  introduced 
into  the  Colony  either  wholly  or  in  part  at  the  expense  of  the 
immigration  fund,  and  his  children  while  he  is  under  indenture.  * 9 

Restrictions. 

No  infirm  person,  pauper  or  destitute  immigrant,  likely  to 
become  a public  charge,  shall  be  permitted  to  land  unless  some 
responsible  resident  gives  bond  to  indemnify  the  government 
against  any  expense  that  may  be  incurred,  within  a year,  in 
behalf  of  each  immigrant.  Or  unless  the  immigrant  shall  de- 
posit with  the  immigration  officer  the  sum  of  one  hundred  dol- 
lars as  a guaranty. 

No  alien  criminal  or  person  otherwise  vicious  shall  be  permit- 
ted to  land. 

Penalties. 

For  every  prohibited  person  who  lands  the  vessel  bringing 
him  shall  be  liable  for  a maritime  lien  of  five  hundred  dollars. 
The  master  of  any  vessel  who  allows  any  prohibited  person  to 
land,  the  person  who  lands,  and  any  one  who  knowingly  causes 
such  a person  to  be  landed  shall  be  liable  to  a penalty  of  two 
hundred  and  fifty  dollars. 

General  Provisions. 

An  indenture  means  a contract  for  service  between  an  im- 
migrant and  an  employer  registered  under  this  Ordinance. 
Employers  are  required  to  apply  to  the  government  for  the 
allotment  of  immigrants  procured  by  the  Colony  or  for  authority 
to  introduce  them  at  private  expense. 

On  arrival  immigrants  are  provided  for  at  the  expense  of  the 
Colony  until  allotted  to  an  employer. 

Every  employer  is  required  to  provide  suitable  and  comfort- 
able dwellings  and  other  needful  comforts  for  the  indentured 
immigrants ; and  to  furnish  adequate  supplies  to  maintain  the 
immigrant  in  health.  And  he  is  held  responsible  for  the  welfare 
and  protection  of  all  immigrants  indentured  to  him. 

The  immigrants  are  required  to  perform  faithfully  their  duties 
under  the  contract. 

They  may  lodge  any  complaint  against  their  employer  with 
the  Protector  of  Immigrants  who  is  authorized  to  investigate 
and  punish  offenses  committed  against  the  immigrants. 


794 


Appendix  A. 


URUGUAY. 

Decree  of  December  10,  1894. 
###### 

Article  1.  The  following  are  excludable  immigrants,  in  ac- 
cordance with  article  26  of  the  Law  on  the  subject:  (1)  Persons 
suffering  from  a contagious  disease;  (2)  beggars;  (3)  persons 
who  by  reason  of  some  organic  vice  or  physical  defect  are  ab- 
solutely worthless  for  laboring  purposes;  (4)  persons  more  than 
sixty  years  of  age. 

Article  2.  In  accordance  with  article  27  of  the  same  Law 
Asiatics,  Africans  and  persons  generally  described  as  Gypsies 
or  Bohemians  are  also  excludable  immigrants. 

Article  3.  The  persons  described  in  the  preceding  articles 
coming  as  second  or  third  class  passengers  from  the  Republics 
of  Paraguay  and  the  Argentine  shall  not  land  in  the  ports  of 
the  Republic.  This  prohibition  extends  to  such  persons  who 
shall  arrive  as  third  class  passengers  at  a port  of  the  Republic 
coming  from  Brazil  or  any  other  foreign  port. 

Article  6.  The  Inspector  of  Disembarkation  shall  personally 
examine  suspicious  persons  and  whenever  such  persons  are  found 
to  be  included  in  the  excludable  classes  shall  prohibit  their  dis- 
embarkation and  at  once  notify  the  Captain  to  return  them, 
without  prejudice  to  proceedings  thereafter  as  provided  by  ar- 
ticle 10. 

Decree  of  October  3,  1902  regarding  the  Admission  of  Im- 
migrants. 

###### 

Article  2.  In  order  that  some  of  the  immigrants  referred  to 
in  article  27  of  the  Law  as  Asiatics,  Africans  and  persons 
generally  known  as  Gypsies  or  Bohemians  may  be  admitted  into 
the  ports  of  the  Republic  as  passengers,  they  must  show  beyond 
a doubt  that  they  have  come  to  South  America  as  first  class 
passengers  from  their  country  of  origin  or  from  the  Continent 
of  Europe. 


Appendix  A. 


795 


VENEZUELA. 

Law  of  April  16,  1903. 

Article  1.  Aliens  while  within  the  territory  of  the  United 
States  of  Venezuela  shall  enjoy  the  same  civil  rights  as  Vene- 
zuelans as  is  declared  by  the  Constitution  of  the  Republic. 

Article  2.  Aliens  within  the  territory  of  the  United  States 
of  Venezuela  are  to  be  classified  as  domiciled  or  transient  aliens. 

Article  3.  The  following  shall  be  considered  domiciled  aliens : 

(1)  Those  who  shall  have  acquired  a domicile  in  conformity 
with  the  provisions  of  the  civil  code; 

(2)  Those  who  of  their  own  free  will  and  accord  and  not 
being  vested  with  a diplomatic  character  shall  have  continuously 
resided  in  the  country  for  more  than  two  years; 

(3)  Those  who  shall  possess  landed  property  within  the  limits 
of  the  republic  for  more  than  two  years,  and  shall  carry  on  any 
business  or  industry  there,  provided  that  they  shall  maintain  a 
permanent  establishment ; and  even  though  they  are  vested  with 
a consular  character. 

Article  4.  Those  persons  are  considered  transient  aliens  who 
shall  be  found  within  the  territory  of  the  republic  and  who  are 
not  included  in  any  one  of  the  paragraphs  of  the  preceding 
article. 

■X* 

Article  6.  Domiciled  or  transient  aliens  shall  not  in  any  way 
take  part  in  the  political  affairs  of  the  Republic  in  any  connec- 
tion whatsoever.  Consequently  they  shall  not: 

(1)  Be  members  of  political  associations; 

(2)  Collaborate  in  political  publications  or  write  articles 
bearing  on  the  internal  or  external  politics  of  the  country  for 
any  publication; 

(3)  Assume  public  offices  or  employments; 

(4)  Take  up  arms  in  the  internal  conflicts  of  the  Republic; 

(5)  Make  speeches  in  any  way  relating  to  the  politics  of  the 
country. 

Article  7.  Domiciled  aliens  who  shall  violate  any  one  of  the 
provisions  contained  in  article  6 shall  lose  their  status  as  aliens 
and  shall  become  ipso  facto  subject  to  the  responsibilities, 


796 


Appendix  A. 


charges  and  obligations  which  the  vicissitudes  of  politics  may 
impose  upon  nationals. 

* * * * # * * 

Article  9.  Transient  aliens  who  shall  violate  the  provision^ 
set  out  in  artcle  6 shall  be  forthwith  expelled  from  the  territory 
of  the  Republic. 

****** 

Article  11.  Neither  resident  nor  transient  aliens  shall  have 
the  right  to  seek  diplomatic  remedies  except  when  after  having 
exhausted  all  local  remedies  it  shall  clearly  appear  that  there 
has  been  a denial  of  justice,  flagrant  injustice  or  an  obvious 
violation  of  the  principles  of  international  law. 

Article  12.  Aliens  actually  domiciled,  those  who  for  the 
future  shall  fix  their  domicile  in  the  country  and  transient  aliens 
not  of  a diplomatic  character  shall  submit  a statement  before 
the  first  civil  authority  of  the  place  where  they  are  found,  to  the 
effect  that  they  submit  themselves  completely  to  the  provisions 
of  the  present  law  and  to  those  of  the  decree  of  February  14, 
1873,  providing  regulations  regarding  the  manner  in  which  aliens 
are  to  be  indemnified  in  the  proper  case. 

Those  who  shall  fail  to  make  this  declaration  shall  be  expelled 
from  the  country  within  a period  of  the  extent  of  which  they 
shall  be  informed  by  the  national  executive  power. 

****** 

Article  20.  Foreigners  who  shall  come  to  the  Republic  for 
the  purpose  of  being  admitted  in  order  to  settle  there  shall 
present  to  the  first  civil  authority  of  the  place  at  which  they 
arrive  the  necessary  documents  to  establish  their  personal  status 
and  a certificate  of  good  conduct  issued  by  the  authorities  at 
their  last  domicile  and  legalized  in  due  form. 


Appendix  B. 


797 


APPENDIX  B 

LAWS  EELATING  TO  THE  ADMISSION  OF  CHINESE. 
INTO  THE  UNITED  STATES.1 

Act  of  May  6 , 1882 , as  amended  and  added  to  by  Act  of  July 

5,  1884 . 

(22  Stat.,  p.  58;  23  Stat.,  p.  115.) 

AN  ACT  To  amend  an  act  entitled:  “An  act  to  execute  certain  treaty 
stipulations  relating  to  Chinese,  approved  May  sixth,  eighteen  hundred 
and  eighty-two.  ’ ’ 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled , That  section 
one  of  the  act  entitled  “An  act  to  execute  certain  treaty  stipula- 
tions relating  to  Chinese/  ’ approved  May  sixth,  eighteen  hund- 
red and  eighty-two,  is  hereby  amended  so  as  to  read  as  follows: 

“Whereas  in  the  opinion  of  the  Government  of  the  United 
States  the  coming  of  Chinese  laborers  to  this  country  endangers 
the  good  order  of  certain  localities  within  the  territory  thereof: 
Therefore 

“Ee  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled , That 
from  and  after  the  passage  of  this  act,  and  until  the  expiration 
of  ten  years  next  after  the  passage  of  this  act,  the  coming  of 
Chinese  laborers  to  the  United  States  be,  and  the  same  is  hereby 
suspended,  and  during  such  suspension  it  shall  not  be  lawful 
for  any  Chinese  laborer  to  come  from  any  foreign  port  or  place 
or  having  so  come  to  remain  within  the  United  States.” 

Section  two  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

“Sec.  2.  That  the  master  of  any  vessel  who  shall  knowingly 
bring  within  the  United  States  on  such  vessel,  and  land,  or 
attempt  to  land,  or  permit  to  be  landed  any  Chinese  laborer, 
from  any  foreign  port  or  place,  shall  be  deemed  guilty  of  a mis- 

1 As  issued  by  the  Department  of  Commerce  and  Labor,  April  15,  1912. 


798 


Appendix  B. 


demeanor,  and,  on  conviction  thereof,  shall  be  punished  by  a 
fine  of  not  more  than  five  hundred  dollars  for  each  and  every 
such  Chinese  laborer  so  brought,  and  may  also  be  imprisoned 
for  a term  not  exceeding  one  year.” 

Section  three  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

“Sec.  3.  That  the  two  foregoing  sections  shall  not  apply  to 
Chinese  laborers  who  were  in  the  United  States  on  the  seventeenth 
day  of  November,  eighteen  hundred  and  eighty,  or  who  shall 
have  come  into  the  same  before  the  expiration  of  ninety  days  next 
after  the  passage  of  the  act  to  which  this  act  is  amendatory,  nor 
shall  said  sections  apply  to  Chinese  laborers,  who  shall  produce 
to  such  master  before  going  on  board  such  vessel,  and  shall  pro- 
duce to  the  collector  of  the  port  in  the  United  States  at  which 
such  vessel  shall  arrive,  the  evidence  hereinafter  in  this  act  re- 
quired of  his  being  one  of  the  laborers  in  this  section  mentioned ; 
nor  shall  the  two  foregoing  sections  apply  to  the  case  of  any 
master  whose  vessel,  being  bound  to  a port  not  within  the  United 
States,  shall  come  within  the  jurisdiction  of  the  United  States 
by  reason  of  being  in  distress  or  in  stress  of  weather,  or  touching 
at  any  port  of  the  United  States  on  its  voyage  to  any  foreign 
port  or  place:  Provided:  That  all  Chinese  laborers  brought  on 
such  vessel  shall  not  be  permitted  to  land  except  in  case  of  ab- 
solute necessity,  and  must  depart  with  the  vessel  on  leaving 
port.”2 

###### 

“Sec.  6.  That  in  order  to  the  faithful  execution  of  the  pro- 
visions of  this  act,  every  Chinese  person,  other  than  a laborer, 
who  may  be  entitled  by  said  treaty  or  this  act  to  come  within  the 
United  States,  and  who  shall  be  about  to  come  to  the  United 
States,  shall  obtain  the  permission  of  and  be  identified  as  so  en- 
titled by  the  Chinese  Government,  or  of  such  other  foreign  govern- 
ment of  which  at  the  time  such  Chinese  person  shall  be  a subject, 
in  each  ease  to  be  evidenced  by  a certificate  issued  by  such  Gov- 
ernment, which  certificate  shall  be  in  the  English  language,  and 
shall  show  such  permission,  with  the  name  of  the  permitted 
person  in  his  or  her  proper  signature,  and  which  certificate  shall 
state  the  individual,  family,  and  tribal  name  in  full,  title,  or  of- 

2 Sections  4 and  5 have  been  superseded  by  the  Act  of  September  13,  1888, 
and  are  therefore  omitted. 


Appendix  B. 


799 


ficial  rank,  if  any,  the  age,  height,  and  all  physical  peculiarities, 
former  and  present  occupation  or  profession,  when  and  where 
and  how  long  pursued,  and  place  of  residence  of  the  person  to 
whom  the  certificate  is  issued,  and  that  such  person  is  entitled 
by  this  act  to  come  within  the  United  States. 

“If  the  person  so  applying  for  a certificate  shall  be  a mer- 
chant, said  certificate  shall,  in  addition  to  above  requirements 
state  the  nature,  character,  and  estimated  value  of  the  business 
carried  on  by  him  prior  to  and  at  the  time  of  his  application  as 
aforesaid : Provided,  That  nothing  in  this  act  nor  in  said  treaty 
shall  be  construed  as  embracing  within  the  meaning  of  the  word 
‘merchant/  hucksters,  peddlers,  or  those  engaged  in  taking 
drying,  or  otherwise  preserving  shell  or  other  fish  for  home  con- 
sumption or  exportation. 

“If  the  certificate  be  sought  for  the  purpose  of  travel  for 
curiosity,  it  shall  also  state  whether  the  applicant  intends  to  pass 
through  or  travel  within  the  United  States,  together  with  his 
financial  standing  in  the  country  from  which  such  certificate  is 
desired. 

“The  certificate  provided  for  in  this  act,  and  the  identity  of 
the  person  named  therein  shall,  before  such  person  goes  on 
board  any  vessel  to  proceed  to  the  United  States,  be  viseed 
by  the  indorsement  of  the  diplomatic  representative  of  the 
United  States  in  the  foreign  country  from  which  such  certificate 
issues,  or  of  the  consular  representative  of  the  United  States  at 
the  port  or  place  from  which  the  person  named  in  the  certificate 
is  about  to  depart;  and  such  diplomatic  representative  or  con* 
sular  representative  whose  indorsement  is  so  required  is  hereby 
empowered,  and  it  shall  be  his  duty,  before  indorsing  such  cer- 
tificate as  aforesaid,  to  examine  into  the  truth  of  the  statements 
set  forth  in  said  certificate,  and  if  he  shall  find  upon  examina- 
tion that  said  or  any  of  the  statements  therein  contained  are 
untrue  it  shall  be  his  duty  to  refuse  to  indorse  the  same. 

“Such  certificate  viseed  as  aforesaid  shall  be  prima  facie 
evidence  of  the  facts  set  forth  therein,  and  shall  be  produced  tc 
the  Chinese  inspector  in  charge  of  the  port  in  the  district  in  the 
United  States  at  which  the  person  named  therein  shall  arrive, 
and  afterward  produced  to  the  proper  authorities  of  the  United 
States  whenever  lawfully  demanded,  and  shall  be  the  sole  evi- 
dence permissible  on  the  part  of  the  person  so  producing  the 


800 


Appendix  B. 


same  to  establish  a right  of  entry  into  the  United  States;  but 
said  certificate  may  be  controverted  and  the  facts  therein  stated 
disproved  by  the  United  States  authorities.” 

Sec.  7.  That  any  person  who  shall  knowingly  and  falsely 
alter  or  substitute  any  name  for  the  name  written  in  such  cer- 
tificate or  forge  any  such  certificate,  or  knowingly  utter  any 
forged  or  fraudulent  certificate,  or  falsely  personate  any  person 
named  in  any  such  certificate,  shall  be  deemed  guilty  of  a mis- 
demeanor; and  upon  conviction  thereof  shall  be  fined  in  a sum 
not  exceeding  one  thousand  dollars,  and  imprisoned  in  a peni- 
tentiary for  a term  of  not  more  than  five  years. 

Section  eight  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

4 ‘ Sec.  8.  That  the  master  of  any  vessel  arriving  in  the  United 
States  from  any  foreign  port  or  place  shall,  at  the  same  time  he 
delivers  a manifest  of  the  cargo,  and  if  there  be  no  cargo,  then 
at  the  time  of  making  a report  of  the  entry  of  the  vessel  pur- 
suant to  law,  in  addition  to  the  other  matter  required  to  be  re- 
ported, and  before  landing,  or  permitting  to  land,  any  Chinese 
passengers,  deliver  and  report  to  the  Chinese  inspector  in  charge 
of  the  district  in  which  such  vessels  shall  have  arrived  a separate 
list  of  all  Chinese  passengers  taken  on  board  his  vessel  at  any 
foreign  port  or  place,  and  all  such  passengers  on  board  the  ves- 
sel at  that  time.  Such  list  shall  show  the  names  of  such  pas- 
sengers (and  if  accredited  officers  of  the  Chinese  or  of  any  other 
foreign  Government,  traveling  on  the  business  of  that  Govern- 
ment, or  their  servants,  with  a note  of  such  facts),  and  the 
names  and  other  particulars  as  shown  by  their  respective  cer- 
tificates; and  such  list  shall  be  sworn  to  by  the  master  in  the 
manner  required  by  law  in  relation  to  the  manifest  of  the  cargo. 

‘ ‘ Any  refusal  or  willf ull  neglect  of  any  such  master  to  comply 
with  the  provisions  of  this  section  shall  incur  the  same  penalties 
and  forfeiture  as  are  provided  for  a refusal  or  neglect  to  report 
and  deliver  a manifest  of  the  cargo.” 

Sec.  9.  That  before  any  Chinese  passengers  are  landed  from 
any  such  vessel,  the  Chinese  inspector  in  charge,  or  his  deputy, 
shall  proceed  to  examine  such  passengers,  comparing  the  certi- 
ficates with  the  list  and  with  the  passengers;  and  no  passenger 
shall  be  allowed  to  land  in  the  United  States  from  such  vessel  in 
violation  of  law. 


Appendix  B. 


801 


Section  ten  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

‘‘Sec.  10.  That  every  vessel  whose  master  shall  knowingly 
violate  any  of  the  provisions  of  this  act  shall  be  deemed  forfeited 
to  the  United  States,  and  shall  be  liable  to  seizure  and  condemna- 
tion in  any  district  of  the  United  States  into  which  such  vessel 
may  enter  or  in  which  she  may  be  found.” 

Section  eleven  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

“Sec.  11.  That  any  person  who  shall  knowingly  bring  into 
or  cause  to  be  brought  into  the  United  States  by  land,  or  who 
shall  aid  or  abet  the  same,  or  aid  or  abet  the  landing  in  the 
United  States  from  any  vessel,  of  any  Chinese  person  not  law- 
fully entitled  to  enter  the  United  States,  shall  be  deemed  guilty 
of  a misdemeanor,  and  shall  on  conviction  thereof,  be  fined  in  a 
sum  not  exceeding  one  thousand  dollars,  and  imprisoned  for  a 
term  not  exceeding  one  year.” 

Section  twelve  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

‘ ‘ Sec.  12.  That  no  Chinese  person  shall  be  permitted  to  enter 
the  United  States  by  land  without  producing  to  the  proper 
Chinese  inspector  the  certificate  in  this  act  required  of  Chinese 
persons  seeking  to  land  from  a vessel. 

“And  any  Chinese  person  found  unlawfully  within  the  United 
States  shall  be  caused  to  be  removed  therefrom  to  the  country 
from  whence  he  came,  and  at  the  cost  of  the  United  States,  after 
being  brought  before  some  justice,  judge,  or  commissioner  of  a 
court  of  the  United  States  and  found  to  be  one  not  lawfully  en- 
titled to  be  or  to  remain  in  the  United  States;  and  in  all  such 
cases  the  person  who  brought  or  aided  in  bringing  such  person 
to  the  United  States  shall  be  liable  to  the  Government  of  the 
United  States  for  all  necessary  expenses  incurred  in  such  in- 
vestigation and  removal;  and  all  peace  officers  of  the  several 
States  and  Territories  of  the  United  States  are  hereby  invested 
with  the  same  authority  as  a marshal  or  United  States  marshal 
in  reference  to  carrying  out  the  provisions  of  this  act  or  the  act 
of  which  this  is  amendatory,  as  a marshal  or  deputy  marshal  of 
the  United  States,  and  shall  be  entitled  to  like  compensation  to 
be  audited  and  paid  by  the  same  officers. 

“And  the  United  States  shall  pay  all  costs  and  charges  for 


802 


Appendix  B. 


the  maintenance  and  return  of  any  Chinese  person  having  the 
certificate  prescribed  by  law  as  entitling  such  Chinese  person  tc 
come  into  the  United  States  who  may  not  have  been  permitted 
to  land  from  any  vessel  by  reason  of  any  of  the  provisions  of  this 
act.” 

Section  thirteen  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

“Sec.  13.  That  this  act  shall  not  apply  to  diplomatic  and 
other  officers  of  the  Chinese  or  other  Governments  traveling 
upon  the  business  of  that  Government,  whose  credentials  shall 
be  taken  as  equivalent  to  the  certificate  in  this  act  mentioned, 
and  shall  exempt  them  and  their  body  and  household  servants 
from  the  provisions  of  this  act  as  to  other  Chinese  persons.” 

Sec.  14.  That  hereafter  no  State  court  or  court  of  the  United 
States  shall  admit  Chinese  to  citizenship ; and  all  laws  in  conflict 
with  this  act  are  hereby  repealed. 

Section  fifteen  of  said  act  is  hereby  amended  so  as  to  read  as 
follows : 

“Sec.  15.  That  the  provisions  of  this  act  shall  apply  to  all 
subjects  of  China  and  Chinese,  whether  subjects  of  China  or  any 
other  foreign  power;  and  the  words  Chinese  laborers,  wherever 
used  in  this  act  shall  be  construed  to  mean  both  skilled  and  un- 
skilled laborers  and  Chinese  employed  in  mining.” 

Sec.  16.  That  any  violation  of  any  of  the  provisions  of  this 
act,  or  of  the  act  of  which  this  is  amendatory,  the  punishment 
of  which  is  not  otherwise  herein  provided  for,  shall  be  deemed  a 
misdemeanor,  and  shall  , be  punishable  by  fine  not  exceeding  one 
thousand  dollars,  or  by  imprisonment  for  not  more  than  one 
year,  or  both  such  fine  and  imprisonment. 

Sec.  17.  That  nothing  contained  in  this  act  shall  be  construed 
to  affect  any  prosecution  or  other  proceeding,  criminal  or  civil, 
begun  under  the  act  of  which  this  is  amendatory;  but  such  pro- 
secution or  other  proceeding,  criminal  or  civil,  shall  proceed  as 
if  this  act  had  not  been  passed. 

Approved,  July  5,  1884. 


Act  of  September  13,  1888. 

(25  Stat.,  pp.  476-477.) 

AN  ACT  To  prohibit  the  coming  of  Chinese  laborers  to  the  United  States. 


Appendix  B. 


803 


Sec.  5.  That  from  and  after  the  passage  of  this  act,  no 
Chinese  laborer  in  the  United  States  shall  be  permitted,  after 
having  left,  to  return  thereto,  except  under  the  conditions  stated 
in  the  following  sections. 

Sec.  6.  That  no  Chinese  laborer  within  the  purview  of  the 
preceding  section  shall  be  permitted  to  return  to  the  United 
States  unless  he  has  a lawful  wife,  child,  or  parent  in  the  United 
States,  or  property  therein  of  the  value  of  one  thousand  dollars, 
or  debts  of  like  amount  due  him  and  pending  settlement. 

The  marriage  to  such  wife  must  have  taken  place  at  least  a 
year  prior  to  the  application  of  the  laborer  for  a permit  to  re- 
turn to  the  United  States,  and  must  have  been  followed  by  the 
continuous  cohabitation  of  the  parties  as  man  and  wife. 

If  the  right  to  return  be  claimed  on  the  ground  of  property  or 
of  debts,  it  must  appear  that  the  property  is  bona  fide  and  not 
colorably  acquired  for  the  purpose  of  evading  this  act,  or  that 
the  debts  are  unascertained  and  unsettled,  and  not  promissory 
notes  or  other  similar  acknowledgments  of  ascertained  liability. 

Sec.  7.  That  a Chinese  person  claiming  the  right  to  be  per- 
mitted to  leave  the  United  States  and  return  thereto  on  any  of 
the  grounds  stated  in  the  foregoing  section,  shall  apply  to  the 
Chinese  inspector  in  charge  of  the  district  from  which  he  wishes 
to  depart  at  least  a month  prior  to  the  time  of  his  departure, 
and  shall  make  on  oath  before  the  said  inspector  a full  statement 
descriptive  of  his  family,  or  property,  or  debts,  as  the  case  may 
be,  and  shall  furnish  to  said  inspector  such  proofs  of  the  facts 
entitling  him  to  return  as  shall  be  required  by  the  rules  and  re- 
gulations prescribed  from  time  to  time  by  the  Secretary  of  Com- 
merce and  Labor,  and  for  any  false  swearing  in  relation  thereto 
he  shall  incur  the  penalties  of  perjury. 

He  shall  also  permit  the  Chinese  inspector  in  charge  to  take 
a full  description  of  his  person,  which  description  the  collector 
shall  retain  and  mark  with  a number. 

And  if  the  said  inspector,  after  hearing  the  proofs  and  in- 
vestigating all  the  circumstances  of  the  case,  shall  decide  to  issue 
a certificate  of  return,  he  shall  at  such  time  and  place  as  he  may 
designate,  sign  and  give  to  the  person  applying  a certificate  con- 
taining the  number  of  the  description  last  aforesaid,  which  shall 
be  the  sole  evidence  given  to  such  person  of  his  right  to  return. 

If  this  last-named  certificate  be  transferred,  it  shall  become 


804 


Appendix  B. 

void,  and  the  person  to  whom  it  was  given  shall  forfeit  his  right 
to  return  to  the  United  States. 

The  right  to  return  under  the  said  certificate  shall  be  limited 
to  one  year;  but  it  may  be  extended  for  an  additional  period, 
not  to  exceed  a year,  in  cases  where,  by  reason  of  sickness  or 
other  cause  of  disability  beyond  his  control,  the  holder  thereof 
shall  be  rendered  unable  sooner  to  return,  which  facts  shall  be 
fully  reported  to  and  investigated  by  the  consular  representative 
of  the  United  States  at  the  port  or  place  from  which  such  laborer 
departs  for  the  United  States,  and  certified  by  such  representa- 
tive of  the  United  States  to  the  satisfaction  of  the  Chinese  in- 
spector in  charge  at  the  port  where  such  Chinese  person  shall 
seek  to  land  in  the  United  States,  such  certificate  to  be  delivered 
by  said  representative  to  the  master  of  the  vessel  on  which  he 
departs  for  the  United  States. 

And  no  Chinese  laborer  shall  be  permitted  to  re-enter  the 
United  States  without  producing  to  the  proper  officer  in  charge 
at  the  port  of  such  entry  the  return  certificate  herein  required. 
A Chinese  laborer  possessing  a certificate  under  this  section  shall 
be  admitted  to  the  United  States  only  at  the  port  from  which 
he  departed  therefrom,  and  no  Chinese  person,  except  Chinese 
diplomatic  or  consular  officers,  and  their  attendants,  shall  be 
permitted  to  enter  the  United  States  except  at  the  ports  of  San 
Francisco,  Portland,  Oregon,  Boston,  New  York,  New  Orleans. 
Port  Townsend,  or  such  other  ports  as  may  be  designated  by  the 
Secretary  of  Commerce  and  Labor.1 

Sec.  8.  That  the  Secretary  of  Commerce  and  Labor  shall  be. 
and  he  hereby  is,  authorized  and  empowered  to  make  and  pre- 
scribe, and  from  time  to  time  to  change  and  amend  such  rules 
and  regulations,  not  in  conflict  with  this  act,  as  he  may  deem 
necessary  and  proper  to  conveniently  secure  to  such  Chinese  per- 
sons as  are  provided  for  in  articles  second  and  third  of  the  said 
treaty  between  the  United  States  and  the  Empire  of  China,  the 
rights  therein  mentioned,  and  such  as  shall  also  protect  the 
United  States  against  the  coming  and  transit  of  persons  not  en- 
titled to  the  benefit  of  the  provisions  of  said  article. 

And  he  is  hereby  further  authorized  and  empowered  to  pre- 
scribe the  form  and  substance  of  certificates  to  be  issued  to 
Chinese  laborers  under  and  in  pursuance  of  the  provisions  of 

1 The  Secretary  of  the  Treasury  at  the  time  the  Act  went  into  effect. 


Appendix  B. 


805 


said  articles,  and  prescribe  the  form  of  the  record  of  such  certi- 
ficate and  of  the  proceedings  for  issuing  the  same,  and  he  may 
require  the  deposit,  as  a part  of  such  record,  of  the  photograph 
of  the  party  to  whom  any  such  certificate  shall  be  issued. 

Sec.  9.  That  the  master  of  any  vessel  who  shall  knowingly 
bring  within  the  United  States  on  such  vessel,  and  land,  or  at- 
tempt to  land,  or  permit  to  be  landed  any  Chinese  laborer  or 
other  Chinese  person,  in  contravention  of  the  provisions  of  this 
act,  shall  be  deemed  guilty  of  a misdemeanor  and,  on  conviction 
thereof,  shall  be  punished  with  a fine  of  not  less  than  five  hun- 
dred dollars  nor  more  than  one  thousand  dollars,  in  the  discre- 
tion of  the  court,  for  every  Chinese  laborer  or  other  Chinese 
person  so  brought,  and  may  also  be  imprisoned  for  a term  of  not 
less  than  one  year,  nor  more  than  five  years,  in  the  discretion 
of  the  court. 

Sec.  10.  That  the  foregoing  section  shall  not  apply  to  the 
case  of  any  master  whose  vessel  shall  come  within  the  juris- 
diction of  the  United  States  in  distress  or  under  stress  of 
weather,  or  touching  at  any  port  of  the  United  States  on  its 
voyage  to  any  foreign  port  or  place.  But  Chinese  laborers  or 
persons  on  such  vessel  shall  not  be  permitted  to  land,  except  in 
case  of  necessity,  and  must  depart  with  the  vessel  on  leaving 
port. 

Sec.  11.  That  any  person  who  shall  knowingly  and  falsely 
alter  or  substitute  any  name  for  the  name  written  in  any  certi- 
ficate herein  required,  or  forge  such  certificate,  or  knowingly 
utter  any  forged  or  fraudulent  certificate,  or  falsely  personate 
any  person  named  in  any  such  certificate,  and  any  person  other 
than  the  one  to  whom  a certificate  was  issued  who  shall  falsely 
present  any  such  certificate,  shall  be  deemed  guilty  of  a mis- 
demeanor, and  upon  conviction  thereof  shall  be  fined  in  a sum 
not  exceeding  one  thousand  dollars  and  imprisoned  in  a peni- 
tentiary for  a term  of  not  more  than  five  years. 

J*.  JA.  M,  M.  Jf,  Jt, 

SR?  w w 

Sec.  13.  That  any  Chinese  person,  or  person  of  Chinese 
descent,  found  unlawfully  in  the  United  States,  or  its  Territories, 
may  be  arrested  upon  a warrant  issued  upon  a complaint,  under 
oath,  filed  by  any  party  on  behalf  of  the  United  States,  by  any 
justice,  judge,  or  commissioner  of  any  United  States  court,  re- 
turnable before  any  justice,  judge,  or  commissioner  of  a United 


806 


Appendix  B. 


States  court,  or  before  any  United  States  court,  and  when  con- 
victed, upon  a hearing,  and  found  and  adjudged  to  be  one  not 
lawfully  entitled  to  be  or  remain  in  the  United  States,  such  per- 
son shall  be  removed  from  the  United  States  to  the  country 
whence  he  came. 

But  any  such  Chinese  person  convicted  before  a commissioner 
of  a United  States  court  may,  within  ten  days  from  such  con- 
viction, appeal  to  the  judge  of  the  district  court  for  the  district. 

A certified  copy  of  the  judgment  shall  be  the  process  upon 
which  said  removal  shall  be  made,  and  it  may  be  executed  by  the 
marshal  of  the  district,  or  any  officer  having  authority  of  a 
marshal  under  the  provisions  of  this  section. 

And  in  all  such  cases  the  person  who  brought  or  aided  in 
bringing  such  person  into  the  United  States  shall  be  liable  to  the 
Government  of  the  United  States  for  all  necessary  expenses  in- 
curred in  such  investigation  and  removal;  and  all  peace  officers 
of  the  several  States  and  Territories  of  the  United  States  are 
hereby  invested  with  the  same  authority  in  reference  to  carrying 
out  the  provisions  of  this  act,  as  a marshal  or  deputy  marshal 
of  the  United  States,  and  shall  be  entitled  to  like  compensation, 
to  be  audited  and  paid  by  the  same  officers. 

Sec.  14.  That  the  preceding  sections  shall  not  apply  to 
Chinese  diplomatic  or  consular  officers  or  their  attendants,  who 
shall  be  admitted  to  the  United  States  under  special  instructions 
of  the  Department  of  Commerce  and  Labor,  without  production 
of  other  evidence  than  that  of  personal  identity. 

Approved,  September  13,  1888. 

Act  of  May  5,  1892.1 

(27  Stat.,  p.  25.) 

AN  ACT  To  prohibit  the  coming  of  Chinese  persons  into  the  United  States. 
###### 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  all 
laws  now  in  force  prohibiting  and  regulating  the  coming  into 
this  country  of  Chinese  persons  and  persons  of  Chinese  descent 
are  hereby  continued  in  force  for  a period  of  ten  years  from  the 
passage  of  this  act. 

Sec.  2.  That  any  Chinese  person  or  person  of  Chinese  descent, 

1 The  Act  of  October  1,  1888,  (25  Stat.,  p.  504),  was  repealed  by  the 
Treaty  of  1894,  21  Op.  Atty.  Gen.  68 ; hence  its  omission. 


Appendix  B. 


807 


when  convicted  and  adjudged  under  any  of  said  laws  to  be  not 
lawfully  entitled  to  be  or  remain  in  the  United  States,  shall  be 
removed  from  the  United  States  to  China,  unless  he  or  they  shall 
make  it  appear  to  the  justice,  judge,  or  commissioner  before 
whom  he  or  they  are  tried  that  he  or  they  are  subjects  or  citizens 
of  some  other  country,  in  which  case  he  or  they  shall  be  removed 
from  the  United  States  to  such  country : Provided,  That  in  any 
case  where  such  other  country  of  which  such  Chinese  person 
shall  claim  to  be  a citizen  or  subject  shall  demand  any  tax  as  a 
condition  of  the  removal  of  such  person  to  that  country,  he  or 
she  shall  be  removed  to  China. 

Sec.  3.  That  any  Chinese  person  or  person  of  Chinese  descent 
arrested  under  the  provisions  of  this  act  or  the  acts  hereby  ex- 
tended shall  be  adjudged  to  be  unlawfully  within  the  United 
States  unless  such  person  shall  establish,  by  affirmative  proof  to 
the  satisfaction  of  such  justice,  or  commissioner,  his  lawful  right 
to  remain  in  the  United  States. 

Sec.  4.  That  any  such  Chinese  person  or  person  of  Chinese 
descent  convicted  and  adjudged  to  be  not  lawfully  entitled  to 
be  or  remain  in  the  United  States  shall  be  imprisoned  at  hard 
labor  for  a period  of  not  exceeding  one  year  and  thereafter  re- 
moved from  the  United  States,  as  hereinbefore  provided.2 

Sec.  5.  That  after  the  passage  of  this  act,  on  an  application 
to  any  judge  or  court  of  the  United  States  in  the  first  instance 
for  a writ  of  habeas  corpus,  by  a Chinese  person  seeking  to  land 
in  the  United  States,  to  whom  that  privilege  has  been  denied,  no 
bail  shall  be  allowed,  and  such  application  shall  be  heard  and 
determined  promptly  without  unnecessary  delay. 

Sec.  6.3  And  it  shall  be  the  duty  of  all  Chinese  laborers  with- 
in the  limits  of  the  United  States  at  the  time  of  the  passage  of 
this  act,  and  who  are  entitled  to  remain  in  the  United  States,  to 
apply  to  the  collector  of  internal  revenue  of  their  respective 
districts,  within  one  year  after  the  passage  of  this  act,  for  a 
certificate  of  residence,  and  any  Chinese  laborer  within  the  limits 
of  the  United  States  who  shall  neglect,  fail,  or  refuse  to  comply 
with  the  provisions  of  this  act,  or  who,  after  one  year  from  the 
passage  hereof,  shall  be  found  within  the  jurisdiction  of  the 
United  States  without  such  certificate  of  residence,  shall  be 

2 This  provision  is  void;  see  163  U.  S.,  228. 

8 Amended  by  Act  of  November  3,  1893.  See  post. 


808 


Appendix  B. 


deemed  and  adjudged  to  be  unlawfully  within  the  United  States, 
and  may  be  arrested  by  any  United  State  customs  official,  col- 
lector of  internal  revenue,  or  his  deputies,  United  States  marshal 
or  his  deputies,  and  taken  before  a United  States  judge,  whose 
duty  it  shall  be  to  order  that  he  be  deported  from  the  United 
States,  as  hereinbefore  provided,  unless  he  shall  establish 
clearly  to  the  satisfaction  of  said  judge  that  by  reason  of  ac- 
cident, sickness  or  other  unavoidable  cause,  he  has  been  unable 
to  procure  his  certificate,  and  to  the  satisfaction  of  the  court, 
and  by  at  least  one  credible  white  witness,  that  he  was  a resident 
of  the  United  States  at  the  time  of  the  passage  of  this  act;  and 
rif  upon  the  hearing  it  shall  appear  that  he  is  so  entitled  to  a 
certificate,  it  shall  be  granted  upon  his  paying  the  cost. 

Should  it  appear  that  said  Chinaman  had  procured  a certi- 
ficate which  has  been  lost  or  destroyed,  he  shall  be  detained  and 
judgment  suspended  a reasonable  time  to  enable  him  to  pro- 
cure a duplicate  from  the  officer  granting  it,'  and  in  such  cases 
the  cost  of  said  arrest  and  trial  shall  be  in  the  discretion  of  the 
court. 

And  any  Chinese  person,  other  than  a Chinese  laborer,  having 
a right  to  be  and  remain  in  the  United  States,  desiring  such 
certificate  as  evidence  of  such  right,  may  apply  for  and  receive 
the  same  without  charge. 

Sec.  6.  [as  amended  by  section  1 of  the  act  of  November  3, 
1893].  And  it  shall  be  the  duty  of  all  Chinese  laborers  within 
the  limits  of  the  United  States  who  were  entitled  to  remain  in 
the  United  States  before  the  passage  of  the  act  to  which  this  is 
an  amendment  to  apply  to  the  collector  of  internal  revenue  of 
their  respective  districts  within  six  months  after  the  passage  of 
this  act  for  a certificate  of  residence;  and  any  Chinese  laborer 
within  the  limits  of  the  United  States  who  shall  neglect,  fail,  or 
refuse  to  comply  with  the  provisions  of  this  act  and  the  act  to 
which  this  is  an  amendment,  or  who,  after  the  expiration  of  said 
six  months,  shall  be  found  within  the  jurisdiction  of  the  United 
States  without  such  certificate  of  residence,  shall  be  deemed  and 
adjudged  to  be  unlawfully  within  the  United  States,  and  may 
be  arrested  by  any  United  States  custom  official,  collector  of 
internal  revenue  or  his  deputies,  United  States  marshal  or  his 
deputies,  and  taken  before  a United  States  judge,  whose  duty  it 
shall  be  to  order  that  he  be  deported  from  the  United  States,  as 


Appendix  B. 


809 


provided  in  this  act  and  in  the  act  to  which  this  is  an  amend- 
ment, unless  he  shall  establish  clearly  to  the  satisfaction  of  said 
judge  that  by  reason  of  accident,  sickness,  or  other  unavoidable 
cause  he  has  been  unable  to  procure  his  certificate,  and  to  the 
satisfaction  of  said  United  States  judge,  and  by  at  least  one 
credible  witness  other  than  Chinese,  that  he  was  a resident  of  the 
United  States  on  the  fifth  of  May,  eighteen  hundred  and  ninety- 
two;  and  if,  upon  the  hearing,  it  shall  appear  that  he  is  so  en- 
titled to  a certificate,  it  shall  be  granted  upon  his  paying  the  cost. 

Should  it  appear  that  said  Chinaman  had  procured  a certifi- 
cate which  has  been  lost  or  destroyed,  he  shall  be  detained  and 
judgment  suspended  a reasonable  time  to  enable  him  to  procure 
a duplicate  from  the  officer  granting  it,  and  in  such  cases  the  cost 
of  said  arrest  and  trial  shall  be  in  the  discretion  of  the  court; 
and  any  Chinese  person,  other  than  a Chinese  laborer,  having  a 
right  to  be  and  remain  in  the  United  States,  desiring  such  cer- 
tificate as  evidence  of  such  right,  may  apply  for  and  receive  the 
same  without  charge ; and  that  no  proceedings  for  a violation  of 
the  provisions  of  said  section  six  of  said  act  of  May  fifth,  eigh- 
teen hundred  and  ninety-two,  as  originally  enacted,  shall  here- 
after be  instituted,  and  that  all  proceedings  for  said  violation 
now  pending  are  hereby  discontinued: 

Provided,  That  no  Chinese  person  heretofore  convicted  in  any 
court  of  the  States  or  Territories  or  of  the  United  States  of  a 
felony  shall  be  permitted  to  register  under  the  provisions  of  this 
act ; but  all  such  persons  who  are  now  subject  to  deportation  for 
failure  or  refusal  to  comply  with  the  act  to  which  this  is  an 
amendment  shall  be  deported  from  the  United  States  as  in  said 
act  and  in  this  act  provided,  upon  any  appropriate  proceedings 
now  pending  or  which  may  be  hereafter  instituted. 

Sec.  7.  That  immediately  after  the  passage  of  this  act,  the 
Secretary  of  Commerce  and  Labor4  shall  make  such  rules  and 
regulations  as  may  be  necessary  f<5r  the  efficient  execution  of  this 
act,  and  shall  prescribe  the  necessary  forms  and  furnish  the 
necessary  blanks  to  enable  collectors  of  internal  revenue  to  issue 
the  certificates  required  hereby,  and  make  such  provisions  that 
certificates  may  be  procured  in  localities  convenient  to  the  appli- 
cants. 


4 The  Secretary  of  the  Treasury  at  the  time  the  Act  went  into  effect. 


810 


Appendix  B. 


Such  certificates  shall  be  isued  without  charge  to  the  appli- 
cant, and  shall  contain  the  name,  age,  local  residence  and  occu- 
pation of  the  applicant,  and  such  other  description  of  the 
applicant  as  shall  be  prescribed  by  the  Secretary  of  Com- 
merce and  Labor,  and  a duplicate  thereof  shall  be  filed  in 
the  office  of  the  collector  of  internal  revenue  for  the  district 
within  which  such  Chinaman  makes  application. 

Sec.  8.  That  any  person  who  shall  knowingly  and  falsely 
alter  or  substitute  any  name  for  the  name  written  in  such  cer- 
tificate or  forge  such  certificate,  or  knowingly  utter  any  forged  or 
fraudulent  certificate,  or  falsely  impersonate  any  person  named 
in  such  certificate,  shall  be  guilty  of  a misdemeanor,  and  upon 
conviction  thereof  shall  be  fined  in  a sum  not  exceeding  one 
thousand  dollars  or  imprisoned  in  the  penitentiary  for  a term  of 
not  more  than  five  years. 

Approved,  May  5,  1892. 


Act  of  November  3 , 1893. 

(28  Stat.,  p.  7.) 

AN  ACT  To  amend  an  act  entitled  “An  act  to  prohibit  the  coming  of 
Chinese  persons  into  the  United  States/  ’ approved  May  fifth,  eighteen 
hundred  and  ninety-two. 

[Section  1 reenacted,  with  amendments,  section  6 of  the  Act 
of  May  5,  1892,  and  the  amended  section  is  printed  with  the 
Act  of  May  5,  1892,  ante.] 

Sec.  2.  The  words  “ laborer’ * or  “laborers,”  wherever  used 
;in  this  act,  or  in  the  act  to  which  this  is  an  amendment,  shall 
be  construed  to  mean  both  skilled  and  unskilled  manual  laborers, 
including  Chinese  employed  in  mining,  fishing,  huckstering, 
peddling,  laundrymen,  or  those  engaged  in  taking,  drying,  or 
otherwise  presei.*ving  shell  or  other  fish  for  home  consumption 
or  exportation. 

The  term  “ merchant,”  as  employed  herein  and  in  the  acts 
of  which  this  Is  amendatory,  shall  have  the  following  meaning 
and  none  othryr:  A merchant  is  a person  engaged  in  buying  and 
selling  mercb.andise,  at  a fixed  place  of  business,  which  business 
is  conducted  in  his  name,  and  who  during  the  time  he  claims  to 
be  engaged  $§  a merchant,  does  not  engage  in  the  performance 


Appendix  B. 


811 


of  any  manual  labor,  except  such  as  is  necessary  in  the  conduct 
of  his  business  as  such  merchant. 

Where  an  application  is  made  by  a Chinaman  for  entrance 
into  the  United  States  on  the  ground  that  he  was  formerly  en- 
gaged in  this  country  as  a merchant,  he  shall  establish  by  the 
testimony  of  two  credible  witnesses  other  than  Chinese  the  fact 
that  he  conducted  such  business  as  hereinbefore  defined  for  at 
least  one  year  before  his  departure  from  the  United  States,  and 
that  during  such  year  he  was  not  engaged  in  the  performance 
of  any  manual  labor,  except  such  as  was  necessary  in  the  con- 
duct of  his  business  as  such  merchant,  and  in  default  of  such 
proof  shall  be  refused  landing. 

Such  order  of  deportation  shall  be  executed  by  the  United 
States  marshal  of  the  district  within  which  such  order  is  made, 
and  he  shall  execute  the  same  with  all  convenient  dispatch ; and 
pending  the  execution  of  such  order  such  Chinese  person  shall 
remain  in  the  custody  of  the  United  States  marshal,  and  shall 
not  be  admitted  to  bail. 

The  certificate  herein  provided  for  shall  contain  the  photo- 
graph of  the  applicant,  together  with  his  name  local  residence 
and  occupation,  and  a copy  of  such  certificate,  with  a duplicate 
of  such  photograph  attached,  shall  be  filed  in  the  office  of  the 
United  States  collector  of  internal  revenue  of  the  district  in 
which  such  Chinaman  makes  application. 

Such  photographs  in  duplicate  shall  be  furnished  by  each  ap- 
plicant in  such  form  as  may  be  prescribed  by  the  Secretary  of 
Commerce  and  Labor.1 

Approved,  November  3,  1893. 


Joint  Resolution  of  July  7 , 1898. 

(30  Stat.,  p.  751.) 

* * * There  shall  be  no  further  immigration  of  Chinese 

into  the  Hawaiian  Islands,  except  upon  such  conditions  as  are 
now  or  may  hereafter  be  allowed  by  the  laws  of  the  United 
States ; and  no  Chinese,  by  reason  of  anything  herein  contained, 
shall  be  allowed  to  enter  the  United  States  from  the  Hawaiian 
Islands. 

1 Secretary  of  the  Treasury  when  the  Act  went  into  effect. 


812 


Appendix  B. 


Act  of  April  30,  1900. 

(31  Stat.,  pp.  141-161.) 

AN  ACT  To  provide  a government  for  the  Territory  of  Hawaii. 

Sec.  4.  That  all  persons  who  were  citizens  of  the  Republic 
of  Hawaii  on  August  twelfth,  eighteen  hundred  and  ninety-eight, 
are  hereby  declared  to  be  citizens  of  the  United  States  and  citi- 
zens of  the  Territory  of  Hawaii. 

###### 

Sec.  101.  That  Chinese  in  the  Hawaiian  Islands  when  this 
act  takes  effect  may  within  one  year  thereafter  obtain  certificates 
of  residence  as  required  by  “An  Act  to  prohibit  the  coming  of 
Chinese  persons  into  the  United  States,”  approved  May  fifth, 
eighteen  hundred  and  ninety-two,  as  amended  by  an  Act  ap- 
proved November  third,  eighteen  hundred  and  ninety-three,  en- 
titled “An  Act  to  amend  an  Act  entitled  ‘An  Act  to  prohibit  the 
coming  of  Chinese  persons  into  the  United  States/  approved 
May  fifth,  eighteen  hundred  and  ninety-two,”  and  until  the  ex- 
piration of  said  year  shall  not  be  deemed  to  be  unlawfully  in 
the  United  States  if  found  therein  without  such  certificates: 
Provided,  however,  That  no  Chinese  laborer,  whether  he  shall 
hold  such  certificate  or  not,  shall  be  allowed  to  enter  any  State, 
Territory,  or  District  of  the  United  States  from  the  Hawaiian 
Islands. 

****** 
Approved  April  30,  1900. 

Act  of  June  6,  1900. 

(31  Stat.,  pp.  588-611.) 

AN  ACT  Making  appropriations  for  sundry  civil  expenses  of  the  Govern- 
ment for  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred  and  one, 
and  for  other  purposes. 

* * * and  hereafter  the  Commissioner-General  of  Immi- 

gration, in  addition  to  his  other  duties,  shall  have  charge  of  the 
administration  of  the  Chinese  exclusion  law  and  of  the  various 
acts  regulating  immigration  into  the  United  States,  its  Terri- 
tories, and  the  District  of  Columbia,  under  the  supervision  and 
direction  of  the  Secretary  of  Commerce  and  Labor. 

* * * * * * * * 

Approved,  June  6,  1900. 


Appendix  B. 


813 


Act  of  March  3,  1901. 

(31  Stat.,  p.  1093.) 

AN  ACT  Supplementary  to  an  act  entitled  1 1 An  Act  to  prohibit  the  coming 
of  Chinese  persons  into  the  United  States,”  approved  May  fifth,  eighteen 
hundred  and  ninety-two,  and  fixing  the  compensation  of  commissioners 
in  such  cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled , That  it 
shall  be  lawful  for  the  district  attorney  of  the  district  in  which 
any  Chinese  person  may  be  arrested  for  being  found  unlawfully 
within  the  United  States,  or  having  unlawfully  entered  the 
United  States,  to  designate  the  United  States  commissioner  with- 
in such  district  before  whom  such  Chinese  person  shall  be  taken 
for  a hearing. 

Sec.  2.  That  a United  States  commissioner  shall  be  entitled 
to  receive  a fee  of  five  dollars  for  hearing  and  deciding  a case 
arising  under  the  Chinese-exclusion  laws. 

Sec.  3.  That  no  warrant  of  arrest  for  violations  of  the  Chin- 
ese-exclusion laws  shall  be  issued  by  the  United  States  commis- 
sioners excepting  upon  the  sworn  complaint  of  a United  States 
district  attorney,  assistant  United  States  district  attorney,  col- 
lector, deputy  collector,  or  inspector  of  customs,  immigration  in- 
spector, United  States  marshal,  or  deputy  United  States  marshal, 
or  Chinese  inspector,  unless  the  issuing  of  such  warrant  of  ar- 
rest shall  first  be  approved  or  requested  in  writing  by  the  United 
States  district  attorney  of  the  district  in  which  issued. 

Sec.  4.  That  this  act  shall  take  effect  immediately. 
Approved,  March  3,  1901. 


Act  of  April  29,  1902,  as  Amended  and  Reenacted  by  Section  5 
of  the  Deficiency  Act  of  April  27,  1904.1 
(32  Stat.,  part  1,  p.  176;  33  Stat.,  pp.  394-428.) 

AN  ACT  To  prohibit  the  coming  into  and  to  regulate  the  residence  within 
the  United  States,  its  Territories,  and  all  territory  under  its  jurisdiction, 
and  the  District  of  Columbia,  of  Chinese  and  persons  of  Chinese  descent. 
Section  1.  All  laws  in  force  on  the  twenty-ninth  day  of 
April,  nineteen  hundred  and  two,  regulating,  suspending,  or 
prohibiting  the  coming  of  Chinese  persons  or  persons  of  Chinese 
descent  into  the  United  States,  and  the  residence  of  such  persons 
1 For  explanation  of  effect  of  these  acts,  see  142  Fed.,  128. 


814 


Appendix  B. 


therein,  including  sections  five,  six,  seven,  eight*  nine,  ten,  eleven, 
thirteen,  and  fourteen  of  the  Act  entitled  “An  Act  to  prohibit 
the  coming  of  Chinese  laborers  into  the  United  States/ ’ approved 
September  thirteenth,  eighteen  hundred  and  eighty-eight,  be, 
and  the  same  are  hereby,  reenacted,  extended,  and  continued, 
without  modification,  limitation,  or  condition;  and  said  laws 
shall  also  apply  to  the  island  territory  under  the  jurisdiction  of 
the  United  States,  and  prohibit  the  immigration  of  Chinese  la- 
borers, not  citizens  of  the  United  States,  from  such  island  terri- 
tory to  the  mainland  territory  of  the  United  States,  whether  in 
such  island  territory  at  the  time  of  cession  or  not,  and  from  one 
portion  of  the  island  territory  of  the  United  States  to  another 
portion  of  said  island  territory:  Provided , hoivever,  That  said 
laws  shall  not  apply  to  the  transit  of  Chinese  laborers  from  one 
island  to  another  island  of  the  same  group;  and  any  islands 
within  the  jurisdiction  of  any  State  or  the  district  of  Alaska 
shall  be  considered  a part  of  the  mainland  under  this  section. 

Sec.  2.  That  the  Secretary  of  Commerce  and  Labor1  is  hereby 
authorized  and  empowered  to  make  and  prescribe,  and  from 
time  to  time  to  change,  such  rules  and  regulations  not  inconsis- 
tent with  the  laws  of  the  land  as  he  may  deem  necessary  and 
proper  to  execute  the  provisions  of  this  Act  and  of  the  Acts  here 
by  extended  and  continued  and  of  the  treaty  of  December  eighth, 
eighteen  hundred  and  ninety-four,  between  the  United  States 
and  China,  and  with  the  approval  of  the  President  to  appoint 
such  agents  as  he  may  deem  necessary  for  the  efficient  execution 
of  said  treaty  and  said  Acts. 

Sec.  3.  That  nothing  in  the  provisions  of  this  act  or  any 
other  act  shall  be  construed  to  prevent,  hinder,  or  restrict  any 
foreign  exhibitor,  representative,  or  citizen  of  any  foreign  na- 
tion, or  the  holder,  who  is  a citizen  of  any  foreign  nation,  of  any 
concession  or  privilege  from  any  fair  or  exposition  authorized 
by  Act  of  Congress  from  bringing  into  the  United  States,  under 
contract,  such  mechanics,  artisans,  agents,  or  other  employees, 

2 By  the  Act  of  February  14,  1903,  entitled  “ An  Act  to  establish  the  De- 
partment of  Commerce  and  Labor”  (32  Stat.,  p.  825),  the  Commissioner- 
General  of  Immigration,  the  Bureau  of  Immigration,  and  the  Immigration 
Service  were  transferred  from  the  Treasury  Department  to  the  Department 
of  Commerce  and  Labor. 


Appendix  B. 


815 


natives  of  their  respective  foreign  countries,  as  they  or  any  of 
them  may  deem  necessary  for  the  purpose  of  making  preparation 
for  installing  or  conducting  their  exhibits  or  of  preparing 
for  installing  or  conducting  any  business  authorized  or  permit- 
ted under  or  by  virtue  of  or  pertaining  to  any  concession  or  priv- 
ilege which  may  have  been  or  may  be  granted  by  any  said  fair 
or  exposition  in  connection  with  such  exposition,  under  such 
rules  and  regulations  as  the  Secretary  of  Commerce  and  Labor 
may  prescribe,  both  as  to  the  admission  and  return  of  such  per- 
son or  persons. 

Sec.  4.  That  it  shall  be  the  duty  of  every  Chinese  laborer, 
other  than  a citizen,  rightfully  in,  and  entitled  to  remain  in  any 
of  the  insular  territory  of  the  United  States  (Hawaii  excepted) 
at  the  time  of  the  passage  of  this  act,  to  obtain  within  one  year 
thereafter  a certificate  of  residence  in  the  insular  territory 
wherein  he  resides,  which  certificate  shall  entitle  him  to  residence 
therein,  and  upon  failure  to  obtain  such  certificate  as  herein  pro- 
vided he  shall  be  deported  from  such  insular  territory;  and  the 
Philippine  Commission  is  authorized  and  required  to  make  all 
regulations  and  provisions  necessary  for  the  enforcement  of  this 
section  in  the  Philippine  Islands,  including  the  form  and  sub- 
stance of  the  certificate  of  residence  so  that  the  same  shall  clearly 
and  sufficiently  identify  the  holder  thereof  and  enable  officials 
to  prevent  fraud  in  the  transfer  of  the  same : Provided , however, 
That  if  said  Philippine  Commission  shall  find  that  it  is  impos- 
sible to  complete  the  registration  herein  provided  for  within  one 
year  from  the  passage  of  this  act,  said  Commission  is  hereby 
authorized  and  empowered  to  extend  the  time  for  such  registra- 
tion for  a further  period  not  exceeding  one  year. 

Approved,  April  29,  1902. 

Act  of  February  20,  1907. 

(34  Stat.,  part  1,  pp.  898,  906.) 

AN  ACT  to  regulate  the  immigration  of  aliens  into  the  United  States. 

Sec.  25.  * * * Provided,  That  in  every  case  where  an 

alien  is  excluded  from  admission  into  the  United  States,  under 
any  law  or  treaty  now  existing  or  hereafter  made,  the  decision 
of  the  appropriate  immigration  officers,  if  adverse  to  the  admis- 


816 


Appendix  B. 


sion  of  such  alien,  shall  be  final,  unless  reversed  on  appeal  to  the 
Secretary  of  Commerce  and  Labor.  * * * 

*##### 


Executive  Order  of  the  Governor  of  the  Philippine  Islands. 

Government  of  the  Philippine  Islands, 

Executive  Bureau, 
Manila , P.  I.,  September  23,  1904. 

Executive  Order  [ 

No.  38.  \ 

Whereas  the  Department  of  Commerce  and  Labor  of  the 
United  States  has,  under  date  of  July  twenty-seventh,  nineteen 
hundred  and  three,  issued  a certain  rule  to  regulate  the  admis- 
sion of  Chinese  persons  from  the  Philippine  Islands  into  the 
mainland  territory  of  the  United  States  and  into  the  insular  pos- 
sessions of  the  United  States  other  than  the  Philippine  Islands, 
which  said  rule  is  as  follows: 

[Since  the  issuance  of  this  order  the  rule  mentioned  has  been 
amended;  reference  should  therefore  be  had  to  Rule  11,  p.  37.] 3 

And  whereas  it  is  the  desire  of  the  government  of  the  Philip- 
pine Islands  to  afford  to  such  eligible  Chinese  persons,  residents 
of  these  islands,  as  desire  to  depart  out  of  the  same  for  other 
parts  or  possessions  of  the  United  States,  the  privilege  so  to  do 
and  to  give  evidence  of  such  permission  and  of  the  status  of  each 
person  so  permitted  in  the  manner  now  required  by  law  in  the 
case  of  Chinese  persons  departing  out  of  a foreign  country  as 
nearly  as  may  be : Now  therefore, 

* * * The  collector  of  customs  for  the  Philippine  Islands 

is  hereby  designated  to  grant  such  permission  in  the  name  of  the 
government  of  the  Philippine  Islands,  to  all  such  Chinese  per- 
sons as  shall  have  duly  established  to  his  satisfaction  their  eligi- 
bility under  the  law  to  enter  the  mainland  territory  of  the  United 
States,  or  any  other  of  its  insular  possessions. 

This  permission  and  the  prima  facie  establishment  of  the  facts 
showing  eligibility,  shall  be  evidenced  by  a certificate  signed  and 
approved  by  him  in  analogy  to  the  certificate  required  by  sec- 
tion six  of  the  Act  of  Congress  of  July  fifth,  eighteen  hundred 


8 Here,  post. 


Appendix  B. 


817 


and  eighty-four,  and  referred  to  in  the  rule  above  cited. 

It  is  further  ordered  that  in  the  case  of  Chinese  persons 
coming  from  the  other  insular  possessions  of  the  United  States 
to  the  Philippine  Islands,  bearing  certificates  issued  in  pursuance 
of  the  rule  above  mentioned,  they  shall  be  accorded  at  the  ports 
of  the  Philippine  Islands  the  same  rights  of  entry  as  they  would 
have  did  they  come  possessed  of  similar  certificates  issued  by  a 
foreign  government. 

Luke  E.  Wright, 

Civil  Governor . 


818 


Appendix  C. 


APPENDIX  C 

REGULATIONS  GOVERNING  THE 
ADMISSION  OF  CHINESE1 


Note. — For  laws  and  regulations  applying  to  the  eases  of  aliens  in  gen- 
eral (including  Chinese),  see  the  pamphlet  “Immigration  Laws  and  Regula- 
tions of  July  1,  1907.  ’ 1 

For  rules  regarding  the  collection  of  statistics  concerning  aliens  in  gen- 
eral and  Chinese,  see  same  pamphlet,  seventh  edition. 

The  following  rules  are  not  enforced  in  the  Philippine  Islands  by  officers 
of  the  Department  of  Commerce  and  Labor,  the  Act  of  February  6,  1905 
(33  Stat.,  pp.  689-692),  prescribing  that  the  United  States  immigration 
laws  shall  be  administered  in  said  islands  by  the  officers  of  the  general 
government  thereof. 

Rule  1.  No  Chinese  person,  other  than  a Chinese  diplomat 
or  consular  officer  and  attendants,  shall  be  permitted  to  enter 
the  United  States  elsewhere  than  at  the  ports  of  San  Francisco, 
Cal. ; Portland,  Oregon ; Boston,  Mass. ; New  York,  N.  Y. ; New 
Orleans,  La. ; Port  Townsend  and  Seattle,  Wash. ; Honolulu,  Ha- 
waii ; San  Juan  and  Ponce,  P.  R. ; San  Diego,  Cal. ; and  Tampa, 
Fla.:  Provided,  however,  That  commencing  with  July  1,  1911, 
Chinese  seeking  admission  or  readmission  to  the  United  States 
from  the  Orient  through  Canada  shall  be  examined  under  both 
the  immigration  and  Chinese-exclusion  laws  at  Vancouver,  B.  C., 
those  there  found  admissible  to  be  furnished  with  a certificate  of 
identity,  on  which  they  shall  be  permitted  to  cross  the  Canadian 
boundary,  on  identification,  at  Sumas,  Wash.;  Portal,  N.  D. ; 
Noyes,  Minn. ; Detroit,  Mich. ; Buffalo,  N.  Y. ; Malone  N.  Y. ; Rich- 
ford,  Vt. ; Lowelltown,  Me. ; or  Vanceboro,  Me. ; and  Chinese  seek- 
ing admission  or  readmission  without  having  been  preinvestigated, 
from  Canada,  shall  be  permitted  to  apply  for  examination  to  the 
United  States  immigration  officials  at  Vancouver,  B.  C. ; Winni- 
peg, Manitoba;  or  Montreal,  Quebec,  those  there  found  admis- 
sible to  be  furnished  with  a certificate  of  identity  and  permitted 
to  cross  the  Canadian  boundary  on  identification  at  the  boundary 

1 As  issued  by  the  Department  of  Commerce  and  Labor,  April  15,  1912. 


Appendix  C. 


819 


ports  above  mentioned,  or  at  Island  Pond,  Vt.,  St.  Albans,  Vt., 
Rouses  Point,  N.  Y.,  Suspension  Bridge,  N.  Y.,  and  Port  Huron, 
Mich. ; and  Chinese  seeking  readmission  from  Canada  and  hold- 
ing a return  certificate  issued  after  preinvestigation  in  accord- 
ance with  Rule  13,  15,  or  16,  shall  be  permitted  to  reenter  through 
any  one  of  the  said  border  ports  upon  identification  at  Vancou- 
ver, B.  C. ; Winnipeg,  Manitoba;  or  Montreal,  Quebec,  as  the 
rightful  holder  of  the  return  certificate,  and  the  surrendering  of 
such  certificate,  such  applicant  to  receive  in  lieu  thereof  a cer^ 
tificate  of  identity. 

Rule  2.  Only  those  Chinese  persons  who  are  expressly  de- 
clared by  the  treaty  and  laws  relating  to  the  exclusion  of  Chin- 
ese to  be  admissible  shall  be  allowed  to  enter  the  United  States, 
and  those  only  upon  compliance  with  the  requirements  of  said 
treaty  and  laws  and  of  regulations  issued  thereunder.  The  ad- 
missible classes,  therefore,  are  teachers;  students;  travelers  for 
curiosity  or  pleasure ; and  merchants,  and  their  lawful  wives  and 
minor  children;  officials  of  the  Chinese  Government,  together 
with  their  body  and  household  servants;  Chinese  persons  hold- 
ing the  return  certificate  prescribed  hy  Rules  13,  15,  and  16; 
those  seeking  in  good  faith  to  pass  through  the  country  to  foreign 
territory,  as  provided  in  Rules  17  and  18 ; persons  whose  physical 
condition  necessitates  immediate  hospital  treatment ; Chinese 
persons  shown  to  have  been  born  in  the  United  States,  and  the 
wives  and  children  of  such  Chinese  American  citizens;  and  sea- 
men as  provided  in  Rule  7. 

Rule  3.  Chinese  aliens  shall  be  examined  as  to  their  right  to 
admission  to  the  United  States  under  the  provisions  of  the  law 
regulating  immigration  as  well  as  under  the  laws  relating  to  the 
exclusion  of  Chinese.  As  the  immigration  act  relates  to  aliens  in 
general,  the  status  of  Chinese  applying  for  admission  must  first 
be  determined  in  accordance  with  the  terms  of  that  law  and  of 
the  regulations  drawn  in  pursuance  thereof;  then,  if  found 
admissible  under  such  law  and  regulations,  their  status  under 
the  Chinese-exclusion  laws  and  regulations  shall  be  de- 
termined. In  order  to  avoid  inconvenience,  delay,  or  annoyance 
to  Chinese  applicants  arising  through  misunderstanding,  and  in 
the  interest  of  good  administration,  examination  under  both  sets 
of  laws  and  regulations  shall  be  made,  in  the  order  stated,  only 
at  the  ports  named  and  in  the  manner  specified  in  Rule  1 hereof. 


820 


Appendix  C. 


Rule  4.  (a)  Upon  the  arrival  of  Chinese  persons  at  any 

inspection  port  mentioned  in  Rule  1 they  shall  be  examined 
touching  their  right  to  admission,  and  those  proving  such  right 
shall  be  promptly  landed.  Provided,  That  nothing  contained  in 
these  regulations  shall  be  construed  to  authorize  the  boarding  of 
vessels  of  foreign  navies  arriving  at  ports  of  the  United  States 
for  the  purpose  of  enforcing  the  provisions  of  the  Chinese- 
exclusion  laws. 

(6)  The  said  examination  shall  be  separate  and  apart  from 
the  public,  in  the  presence  of  government  officials  and  such  other 
witnesses  only  as  the  officer  in  charge  shall  designate,  except 
that,  during  so  much  of  the  examination  as  relates  exclusively  to 
applicant’s  status  under  the  Chinese-exclusion  laws,  he  shall  be 
allowed  to  have  counsel  and  an  interpreter  present  to  observe, 
but  not  take  part  in,  the  examination.  All  witnesses  appearing 
on  behalf  of  any  applicant  shall  be  fully  heard. 

Rule  5.  (a)  If  upon  the  conclusion  of  the  hearing  the  Chin- 

ese applicant  is  adjudged  to  be  inadmissible,  he  shall  be  advised 
of  his  right  to  appeal  to  the  Secretary  of  Commerce  and  Labor 
by  a notice  in  the  Chinese  language.  If  the  rejected  applicant 
elects  to  appeal,  written  notice  thereof  must  be  served  on  the 
officer  in  charge  within  five  days,  exclusive  of  Sundays  and  legal 
holidays,  after  rejection. 

(&)  Applicant’s  counsel  shall  be  permitted,  after  notice  of 
appeal  has  been  duly  filed,  to  examine  and  make  copies  of  the 
evidence  upon  which  the  excluding  decision  is  based.  If  there  is 
a consular  officer  of  China  at  the  port  where  examination  is  held, 
he  also  shall  be  notified  in  writing  that  the  said  Chinese  appli- 
cant has  been  refused  a landing,  and  shall  be  permitted  to  ex- 
amine the  record. 

(c)  The  notice  of  appeal  shall  act  as  a stay  upon  the  disposal 
of  the  applicant  until  a final  decision  is  rendered  by  the  Secre- 
tary of  Commerce  and  Labor;  and,  within  ten  days  after  the  ex- 
cluding decision  is  rendered,  unless  further  delay  is  required  to 
investigate  and  report  upon  new  evidence,  the  complete  record 
of  the  case,  together  with  such  briefs,  affidavits,  and  statements 
as  are  to  be  considered  in  connection  therewith,  shall  be  for- 
warded to  the  Secretary  of  Commerce  and  Labor  by  the  officer 
in  charge  at  the  port  of  arrival?  accompanied  by  his  views  thereon 
in  writing.  If,  on  appeal,  evidence  in  addition  to  that  brought 


Appendix  C. 


821 


out  at  the  hearing  is  submitted,  it  shall  be  made  the  subject  of 
prompt  investigation  by  the  officer  in  charge  and  be  accompanied 
by  his  report. 

( d ) Additional  time  for  the  preparation  of  cases  will  be  al- 
lowed only  when,  in  the  judgment  of  the  officer  in  charge,  a lit- 
eral compliance  herewith  would  occasion  injustice  to  the  appel- 
lant or  the  risk  of  defeat  of  the  purposes  of  the  law.  The  rea- 
sons for  the  extension  of  time  shall  in  every  instance  be  stated  in 
writing  and  forwarded  with  the  appeal. 

Rule  6.  (a)  Every  Chinese  person  refused  admission  to  the 

United  States,  being  actually  or  constructively  on  the  vessel  or 
other  conveyance  by  which  he  was  brought  to  a port  of  entry, 
must  be  returned  to  the  country  whence  he  came,  at  the  expense 
of  the  transportation  agency  owning  such  vessel  or  conveyance. 

(&)  The  master,  agent,  or  owner  of  any  vessel  or  other  means 
of  transportation  by  which  Chinese  persons  are  brought  to  any 
port  of  entry  shall,  at  least  twenty-four  hours  before  the  in- 
tended time  of  departure  of  the  vessel  or  other  vehicle,  notify 
the  officer  in  charge  at  said  port  of  such  sailing  or  departure,  in 
order  that  the  said  officer  may  place  on  board  every  Chinese  per- 
son whose  application  for  permission  to  land  has  been  finally 
denied. 

Rule  7.  To  prevent  violations  of  law  by  Chinese  seamen 
discharged  or  granted  shore  leave  at  ports  of  the  United  States, 
bond  with  approved  security  in  the  penalty  of  $500  for  each  such 
seaman  shall  be  exacted  for  his  departure  from  and  out  of  the 
United  States  within  thirty  days. 

Rule  8.  A student  within  the  meaning  of  the  treaty  and 
laws  of  the  United  States  relating  to  the  admission  and  exclu- 
sion of  Chinese  is — 

( a ) A person  who  pursues  some  regular  course  of  study,  in- 
cluding the  higher  branches  of  learning,  but  not  excluding  the 
elementary  or  preparatory  branches,  if  undertaken  in  good  faith ; 

( b ) A person  who  attends  one  of  the  recognized  educational 
institutions  of  the  United  States  designed  for  those  whose  entire 
time  may  be  given  to  scholastic  work; 

(c)  A person  who  studies  to  be  fitted  for  some  particular  pro- 
fession, occupation,  or  calling,  requiring  a technical  or  otherwise 
special  mental  training;  or 

( d ) A person,  already  possessing  a liberal  education,  who  de- 


822 


Appendix  C. 


votes  himself  to  the  study  of  special  subjects  or  questions,  as  a 
student  of  manners,  customs,  institutions,  politics,  economy,  his- 
tory; 

And  who,  in  any  case,  is  also  a person  for  whose  maintenance 
and  support  as  a student  in  the  United  States  adequate  financial 
provision  has  been,  made  or  satisfactorily  assured,  or  a person 
who,  if  he  undertakes  to  provide  for  his  own  support,  does  not 
become  a “ laborer,’ ’ or  acquire  any  other  status  which  would 
bring  him  within  the  class  of  Chinese  persons  excluded  by  statute 
or  treaty ; and  who,  in  any  case,  is  also  a person  whose  intention 
it  is,  upon  the  conclusion  of  his  studies,  either  to  depart  from  the 
United  States  or,  if  he  remains,  to  engage  in  no  pursuit  or  call- 
ing which  would  render  his  presence  in  the  United  States  un- 
lawful. 

Rule  9.  (a)  The  lawful  wife  and  minor  children  of  a Chin- 

ese of  the  exempt  classes  may  be  admitted  to  the  United  States 
without  presenting  the  certificate  prescribed  by  section  6 of  the 
act  approved  July  5,  1884,  the  certificate  of  the  husband  or 
father  being  sufficient  if  the  wife  or  children  accompany  him. 
If  the  husband  or  father  is  domiciled  in  the  United  States,  immi- 
gration officers  shall  require  in  the  cases  of  such  wives  and  minor 
children  evidence  concerning  the  husband  or  father  of  the  char- 
acter specified  by  section  2 of  the  act  approved  November  3,  1893, 
to  establish  the  right  of  a domiciled  Chinese  merchant  to  read- 
mission after  temporary  absence  from  the  United  States.  In 
every  instance  there  shall  be  exacted  convincing  evidence  of  the 
existence  of  the  relationship  claimed,  and  in  the  cases  of  children, 
of  minority. 

(b)  The  lawful  wife  of  an  American  citizen  of  the  Chinese 
race  may  be  admitted  for  the  purpose  of  joining  her  husband, 
and  the  lawful  children  of  such  a citizen  partake  of  his  citizen- 
ship and  are  therefore  entitled  to  admission.  In  every  such  case 
convincing  evidence  of  citizenship  and  relationship  shall  be  ex- 
acted. 

(c)  In  the  cases  described  in  the  two  preceding  paragraphs, 
the  exempt  status  or  citizenship  of  the  alleged  husband  or  father 
may  be  investigated  and  determined  prior  to  the  arrival  of  the 
wife  or  child,  but  no  investigation  regarding  the  claimed  rela- 
tionship shall  be  made  until  the  wife  or  child  arrives  at  the  port 
of  entry. 


Appendix  C. 


823 


Rule  10.  The  officers  whose  titles  are  given  below  have  been 
authorized  by  their  respective  governments  to  issue  to  Chinese 
subjects  or  citizens  of  such  governments  the  certificates  pre- 
scribed by  section  6 of  the  act  approved  July  5,  1884. 

Brazil : Chiefs  of  police,  or  corresponding  officers  in  the  munici- 
palities and  civil  subdivisions. 

Canada : 

Ottawa — Chief  Controller  of  Chinese  Immigration,  or  Assist- 
ant Controller  of  Chinese  Immigration. 

Vancouver — Controller  of  Chinese  Immigration. 

Victoria — Controller  of  Chinese  Immigration. 

Winnipeg— Controller  of  Chinese  Immigration. 

China : 

In  Chinese  Empire — 

Acting  viceroy  of  Hu  Kuang  (Hunan  and  Hupeh). 

Acting  viceroy  of  Sze  Ch’uen. 

Acting  viceroy  of  Liang  Kuang  (Kuangtung  and  Kuanghsi). 
Viceroy  of  Manchuria. 

Tartar-general  of  Fu-chou  and  customs  superintendent  of 
Fu-k’ien. 

Governor  of  Anhui. 

Governor  of  Fengtien. 

Governor  of  Helungchiang. 

Governor  of  Hunan. 

Governor  of  Shantung. 

Governor  of  Kiangsi. 

Governor  of  Kirin. 

Customs  taot’ai  of  Tientsin. 

Taot’ai  of  Antung. 

Taot’ai  of  the  Hui-Ning-Ch  ’ih-T  ’ai-Kwang  circuit. 

Taot’ai  of  the  Hang-chia-hu  circuit. 

Taot’ai  of  Harbin. 

Taot’ai  of  the  Hsing-Ch ’uan-yung  circuit. 

Acting  taot’ai  of  the  Ning-Shao-T ’ai  circuit. 

Taot’ai  of  Newchwang. 

Taot’ai  of  the  Wen  Ch’u  circuit. 

Taot’ai  of  the  Yue-Ch’ang-Li  circuit. 

Taot’ai  of  the  Teng-Lai-Ch’ing  circuit. 

Taot’ai  of  the  Su-Sung-T’ai  circuit. 


824 


Appendix  C. 


China — Continued. 

In  countries  foreign  to  China — 

Austria-Hungary — Chinese  minister  or  charge  d ’affaires, 
Vienna. 

Belgium — Chinese  minister  or  charge  d’affaires,  Bhussels. 
Canada — Chinese  consul  general,  Ottawa,  and  Chinese  con- 
sul, Vancouver. 

Cuba — Chinese  minister  or  charge  d’affaires,  Habana. 
England — Chinese  minister  or  charge  d’affaires,  London. 
France — Chinese  minister  or  charge  d’affaires,  Paris. 
Germany — Chinese  minister  or  charge  d’affaires,  Berlin. 
Hawaii — Chinese  consul,  Honolulu. 

Italy — Chinese  minister  or  charge  d’affaires,  Borne. 

Japan — Chinise  minister  or  charge  d’affaires,  Tokyo;  Chin- 
ese consulrgeneral,  Yokohama. 

Korea — Chinese  consul-general,  Seoul. 

Mexico — Chinese  minister  or  charge  d’affaires,  Mexico  City. 
Netherlands — Chinese  minister  or  charge  d’affaires,  The 
Hague. 

Peru — Chinese  minister  or  charge  d’affaires,  Lima. 
Philippine  Islands — Chinese  consul-general,  Manila. 
Portugal — Chinese  minister  or  charge  d’affaires,  Lisbon. 
Bussia — Chinese  minister  or  charge  d’affaires,  St.  Peters- 
burg. 

Siberia — Chinese  commercial  agent,  Vladivostok. 

Spain — Chinese  minister  or  charge  d’affaires,  Madrid. 
Straits  Settlements — Chinese  consul-general,  Singapore. 
Transvaal — Chinese  consul-general,  Johannesburg. 
Cuba:Chief  of  immigration  department. 

Dutch  Guiana.  (See  Surinam.) 

Dutch  East  Indies:  Directeur  van  Justitie,  Batavia. 

German  Protectorate  of  Kiautschou:  Commissioner  for  Chinese 
affairs  to  the  government,  civil  commissioner,  or  Oberrichter. 
Guatemala:  Minister  of  foreign  affairs  or  subsecretary  of  state. 
Hongkong : Begistrar-general. 

Jamaica:  Deputy  inspector-general  of  police. 

Japan : 

Governor  of  any  fu  (district)  or  ken  (prefecture). 
Hokkaido — Governor-general. 

Formosa — Chief  of  prefecture  having  jurisdiction. 


Appendix  C. 


825 


Macau,  Portuguese  province  of:  Secretary-general. 

Mexico:  Department  for  foreign  affairs. 

Philippine  Islands:  Collector  of  customs. 

Society  Islands:  Commissioner  of  police  of  the  municipality  of 

Papeete,  Tahiti. 

Straits  Settlements:  Colonial  secretary. 

Federated  Malay  States — Colonial  secretary,  federal  sec- 
retary, or  secretary  for  Chinese  affairs. 

Surinam  (Dutch  Guiana)  : 

Government ’s  secretary,  or  secretary  ad  interim  at  Paramaribo. 
Trinidad:  Governor. 

Venezuela:  Mayors  of  cities  or  governors  of  provinces. 

Rule  11.  (a)  Chinese  persons  of  the  exempt  classes  who  are 

citizens  or  subjects  of  other  insular  territory  of  the  United  States 
than  the  territory  of  Hawaii  shall,  if  they  desire  to  go  from 
such  insular  territory  to  the  mainland  or  from  one  insular 
territory  to  another,  comply  with  the  terms  of  section  6 of 
the  act  approved  July  5,  1884.  The  certificate  prescribed 
by  said  section  shall  be  granted  by  officers  designated  for 
that  purpose  by  the  chief  executives  of  said  insular  territories, 
and  the  duties  thereby  imposed  upon  United  States  diplomatic 
and  consular  officers  in  foreign  countries  in  relation  to  Chinese 
persons  of  the  said  classes  shall  be  discharged  by  the  officers  in 
charge  of  the  enforcement  of  the  Chinese  exclusion  acts  at  the 
ports,  respectively,  from  which  any  member  of  such  excepted 
classes  intend  to  depart  from  any  insular  territory  of  the  United 
States : Provided,  however,  That  the  privilege  of  transit  shall  be 
extended  to  all  persons  other  than  laborers,  as  provided  in 
Rule  18. 

(b)  As  all  persons  who  were  citizens  of  the  Republic  of  Ha- 
waii on  August  12,  1898,  are  citizens  of  the  United  States,  per- 
sons of  the  Chinese  race  claiming  such  status  may  be  admitted 
at  either  mainland  or  insular  ports  of  entry  upon  producing  evi- 
dence sufficient  to  establish  such  claim.  Subjects  of  the  Chinese 
Empire  of  the  exempt  classes  residing  in  Hawaii  must  obtain 
certificates  froi*  the  representative  of  their  own  Government 
(the  Chinese  consul,  Honolulu),  and  such  certificates  must  be 
viseed  by  the  inspector  in  charge  of  the  immigration  service  in 
said  islands  instead  of  by  a diplomatic  or  consular  officer. 

(c)  The  governor  of  the  Philippine  Islands,  having,  by  exec- 


826 


Appendix  C. 


utive  order  No.  38,  of  September  23,  1904,  designated  the  collec- 
tor of  customs,  Manila,  to  issue  to  Chinese  citizens  of  those 
islands  the  certificate  provided  by  section  6 of  the  Act  of  July 
5, 1884,  and  it  being  impracticable  to  require  that  such  certificates 
shall  be  viseed,  officers  at  ports  of  entry  for  Chinese  will  regard 
certificates  issued  to  such  Philippine  citizens  in  the  same  manner 
as  certificates  issued  by  officials  of  foreign  countries  and  , viseed 
by  American  diplomatic  or  consular  officers.  Certificates  issued 
by  the  Chinese  consul-general,  Manila,  to  subjects  of  the  Chinese 
Empire  residing  in  the  Philippines  will  be  viseed  by  the  collec- 
tor of  customs  at  Manila,  and  when  so  viseed  will  be  accorded  the 
usual  consideration. 

Pule  12.  (a)  The  laborer’s  return  certificate,  provided  by 

section  7 of  the  Act  of  September  13,  1888,  shall  be  issued  only 
to  such  Chinese  persons  as  have  been  duly  registered  under  the 
provisions  of  the  Act  of  May  5,  1892,  or  the  Act  of  November  3, 
1893,  and  present  a certificate  issued  thereunder,  or  such  as  have 
established  before  a court  of  competent  jurisdiction  the  lawful- 
ness of  their  residence  in  the  United  States  and  present  a certi- 
fied copy  of  the  court’s  decision,  or  such  as  otherwise  establish 
before  the  immigration  official  to  whom  application  for  the  re- 
turn certificate  is  made  that  they  are  lawfully  within  the  United 
States. 

(b)  Chinese  laborers  applying  for  such  certificate  shall  be  re- 
quired to  furnish  the  testimony  of  not  less  than  two  credible  wit- 
nesses, who  have  had  opportunity  to  know  the  circumstances  to 
which  they  testify,  that  one  of  the  grounds  specified  by  the  sec- 
tion of  law  above  mentioned  actually  exists. 

Rule  13.  (a)  Any  Chinese  laborer  claiming  the  right  to 

leave  and  return  to  the  United  States  in  accordance  with  sections 
5-7  of  the  Act  of  September  13,  1888,  shall  make  written  appli- 
cation to  the  immigration  officer  located  nearest  to  his  place  of 
residence  for  preinvestigation  of  his  claim,  such  application  to 
be  prepared  in  triplicate  on  Form  No.  432,  furnished  by  said  im- 
migration officer,  and  to  be  filed  at  least  thirty  days  prior  to  the 
date  of  proposed  departure. 

(b)  Such  applicant  shall  deposit  with  said  officer  a certificate 
of  registration,  or  a certified  copy  of  a decision  of  a court  of 
competent  jurisdiction  showing  that  he  is  lawfully  resident  in 
the  United  States,  or  shall  submit  to  such  officer  parole  evidence 


Appendix  C. 


827 


showing  that  he  is  lawfully  resident  within  the  United  States, 
and  such  applicant  shall  make  on  oath  before  the  officer  in  writ- 
ing a full  statement  descriptive  of  his  family  or  property  or 
debts,  as  the  case  may  be,  and  giving  his  name,  height,  local  resi- 
dence, occupation,  and  distinguishing  marks,  if  any,  and  nam- 
ing the  port  at  which  he  expects  to  depart  from  the  United 
States,  which  shall  be  one  of  those  designated  in  Rule  1. 

(c)  To  each  of  the  three  copies  of  said  application  there  shall 
be  attached  a photograph  of  the  applicant  printed  from  the  same 
negative. 

( d ) The  officer  to  whom  such  application  is  submitted  shall 
make  a thorough  examination  as  to  the  accuracy  of  the  descrip- 
tive statement,  whether  the  accompanying  photograph  is  that 
of  the  person  described  in  the  certificate  or  certified  copy  of  court 
record  and  statement,  and  whether  applicant’s  height  and  de- 
scriptive physical  marks  are  accurately  given,  and  shall  trans- 
mit the  certificate  of  residence  to  the  Commissioner-General  of 
Immigration,  for  comparison  with  the  record  thereof  in  his  office, 
in  respect  not  only  to  name  and  date  therein,  but  in  all  other 
particulars,  or  the  certified  copy  of  court  record  to  the  clerk  of 
the  court  by  whom  issued  for  verification.  Said  officer  shall  also 
examine  the  applicant,  such  witnesses  as  he  may  produce,  and 
such  other  witnesses  as  may  be  necessary,  causing  their  testimony 
to  be  transcribed  in  duplicate. 

( e ) Upon  completing  the  investigation  said  officer  shall,  after 
writing  his  signature  across  the  margin  of  the  photograph  at- 
tached to  each  copy  of  the  application,  forward  the  original  and 
triplicate  of  the  application,  the  certificate  or  certified  copy  of 
court  record,  two  transcripts  of  the  testimony,  and  his  report 
of  his  investigation  of  the  case,  to  the  immigration  official  in 
charge  at  the  port  of  proposed  departure.  If  applicant  proposes 
to  cross  the  boundary  at  a Canadian  border  port  and  embark  at 
Vancouver,  the  papers  shall  Re  forwarded  to  the  inspector  in 
charge,  Vancouver.  If  he  proposes  to  make  a visit  to  Canada 
merely,  the  papers  shall  be  forwarded  to  the  inspector  in  charge, 
Vancouver,  if  the  border  port  of  departure  is  Sumas;  to  the  in- 
pector  in  charge,  Winnipeg,  if  the  border  port  is  Portal  or  Noyes ; 
to  the  commissioner  of  immigration,  Montreal,  if  the  border  port 
is  Detroit,  Buffalo,  Malone,  Richford,  Lowelltown,  or  Vanceboro. 

(/)  The  official  in  charge  at  the  port  of  departure  shall,  upon 


828 


Appendix  C. 


the  receipt  of  the  papers  named  in  the  preceding  paragraph,  re- 
turn to  the  officer  from  whom  received  the  triplicate  copy  of  the 
application,  placing  thereon  a statement  as  to  whether  or  not  he 
is  satisfied,  on  the  evidence  presented,  to  indorse  the  application 
favorably. 

( g ) In  the  event  an  unfavorable  response  is  received  from  the 
officer  in  charge  at  the  port,  the  investigating  officer  shall  notify 
the  applicant  thereof,  advising  him  that  such  decision  is  not 
final,  but  that  he  may  appeal  to  the  Commissioner-General  of 
Immigration  from  the  adverse  decision.  If  a favorable  response 
is  received,  the  investigating  officer  shall  deliver  to  the  appli- 
cant the  duplicate  copy  of  the  application,  with  instructions  to 
exchange  it  at  the  office  of  the  immigration  officer  in  charge  at 
the  port  of  departure  for  the  original  thereof.  The  triplicate  re- 
turned from  the  port  of  proposed  departure  and  the  duplicate 
copies  of  the  report  and  transcript  of  testimony  shall  be  placed 
on  file  in  the  office  of  the  inspector  in  charge  of  the  district  (or 
subdistrict,  as  the  local  practice  may  require)  in  which  the  ap- 
plicant has  resided. 

(h)  Upon  the  arrival  of  the  applicant  at  the  port  of  depart- 
ure and  the  presentation  by  him  of  the  duplicate  of  the  applica- 
tion, such  duplicate  shall  be  placed  on  file,  and  the  original,  with 
the  indorsement  of  approval  appearing  thereon  filled  out  and 
signed,  and  with  the  signature  and  seal  of  the  officer  in  charge 
placed  over  the  margin  of  the  photograph,  shall  be  delivered  to 
the  applicant  for  use  upon  his  return.  At  the  time  of  departure 
— applicant’s  address  in  the  country  to  which  he  is  going  shall 
be  secured  for  use  in  the  case  it  should  become  necessary  to  cor- 
respond with  him;  and  the  applicant  must  be  clearly  advised 
that  upon  his  return  to  the  port  of  departure  there  must  still  ex- 
ist the  statutory  ground  for  his  readmission. 

(hh)  If  any  such  applicant  desires  to  have  a record  made  at 
the  port  of  departure  of  his  physical  condition  when  leaving  the 
country,  he  may  apply  for  a medical  examination  by  the  Public 
Health  and  Marine-Hospital  surgeon  detailed  to  the  Immigration 
Service  at  such  port,  the  surgeon’s  certificate  covering  such  ex- 
amination to  be  indorsed  upon  or  attached  to  the  duplicate  copy 
of  Form  432.  The  record  so  constituted  may  be  referred  to  on 
applicant’s  return  if  it  becomes  necessary  to  determine  whether 


Appendix  C. 


829 


he  contracted  before  leaving  this  country  a loathsome  or  danger- 
ous contagious  disease  or  tuberculosis. 

( i ) On  the  return  of  the  applicant  the  original  application 
shall  be  compared  with  the  duplicate  on  file,  and  with  the  person 
presenting  it,  and  if  the  officer  in  charge  is  satisfied  of  the  iden- 
tity of  such  person,  and  nothing  has  occurred  during  his  absence 
to  discredit  the  evidence  taken  on  the  preinvestigation,  he  shall 
be  promptly  admitted  without  further  examination  or  investiga- 
tion. The  original  application  shall  then  be  placed  in  the  files, 
and  the  applicant’s  registration  certificate  or  certified  copy  of 
court  record  shall  be  returned  to  him. 

Exile  14.  Whenever  a Chine'se  laborer  holding  a return  cer- 
tificate is  detained  by  his  sickness  or  by  other  disability  beyond 
his  control  for  a time  in  excess  of  one  year  after  the  date  of  his 
departure  from  the  United  States,  the  facts  shall  be  fully  re- 
ported to  and  investigated  by  the  consular  representative  of  the 
United  States  at  the  port  or  place  from  which  such  laborer  de- 
parts for  the  United  States,  and  such  consular  representative 
shall  certify,  to  the  satisfaction  of  the  officer  in  charge  at  the 
port  of  return,  which  must  be  the  port  from  which  such  laborer 
departed,  that  he  has  fully  investigated  the  statements  of  such 
laborer  and  believes  that  he  was  unavoidably  detained  for  the 
time  specified  and  for  the  reason  stated,  such  certificate  to  be  de- 
livered by  such  consular  representative  to  the  master  of  the  ves- 
sel on  which  the  Chinese  laborer  departs  for  the  United  States 
and  by  the  master  delivered  to  the  officer  in  charge  at  the  port 
of  return. 

Eule  15.  ( a ) Any  Chinese  merchant  (or  teacher,  or  stud- 
ent) resident  in  the  United  States  who  desires  to  go  abroad  tem- 
porarily may,  in  order  to  avoid  delay  in  securing  admission  upon 
return  to  one  of  the  ports  named  in  Eule  1 hereof,  make  written 
application  to  the  immigration  officer  located  nearest  to  his  place 
of  residence  for  preinvestigation  of  his  claim  of  being  a merch- 
ant (or  teacher,  or  student)  within  the  meaning  of  the  law,  such 
application  to  be  prepared  in  triplicate  on  Form  No.  431, 
furnished  by  said  immigration  officer,  and  to  be  filed  at  least 
thirty  days  prior  to  the  date  of  proposed  departure. 

( b ) To  each  of  the  three  copies  of  said  application  there  shall 
be  attached  a photograph  of  the  applicant  printed  from  the 
same  negative;  and  there  shall  be  furnished  therein  the  names 


830 


Appendix  C. 


and  addresses  of  two  (or  more)  credible  witnesses  other  than 
Chinese  who  are  able  and  willing  to  testify  of  their  own  knowl- 
edge that  for  at  least  one  year  immediately  preceding  the  date 
of  proposed  departure  the  applicant  has  been  engaged  exclusively 
in  the  pursuit  named  by  him. 

(c)  The  officer  to  whom  said  application  is  made  shall  ex- 
amine the  applicant,  such  witnesses  as  he  may  produce,  and  such 
other  witnesses  as  may  be  necessary,  causing  their  testimony  to 
be  transcribed  in  duplicate,  and  shall  take  such  other  steps  as 
may  be  necessary  and  proper  to  determine  whether  the  appli- 
cant’s claim  is  true. 

( d ) Upon  completing  the  investigation  said  officer  shall,  after 
writing  his  signature  across  the  margin  of  the  photograph  at- 
tached to  each  copy  of  the  application,  forward  the  original  and 
triplicate  of  the  application,  two  transcripts  of  the  testimony, 
and  his  report  of  his  investigation  of  the  case,  to  the  immigration 
official  in  charge  at  the  port  of  proposed  departure.  If  appli- 
cant proposes  to  cross  the  boundary  at  a Canadian  border  port 
and  embark  at  Vancouver,  the  papers  shall  be  forwarded  to  the 
inspector  in  charge,  Vancouver.  If  he  proposes  to  make  a visit 
to  Canada  merely,  the  papers  shall  be  forwarded  to  the  inspector 
in  charge,  Vancouver,  if  the  border  port  of  departure  is  Sumas, 
to  the  inspector  in  charge,  Winnipeg,  if  the  border  port  is  Portal 
or  Noyes;  to  the  commissioner  of  immigration,  Montreal,  if  the 
border  port  is  Detroit,  Buffalo,  Malone,  Bichford,  Lowelltown, 
or  Vanceboro. 

(e)  The  official  in  charge  at  the  port  of  departure  shall,  upon 
the  receipt  of  the  papers  named  in  the  preceding  paragraph,  re- 
turn to  the  officer  from  whom  received  the  triplicate  copy  of  the 
application,  placing  thereon  a statement  as  to  whether  or  not  he 
is  satisfied,  on  the  evidence  presented,  to  indorse  the  application 
favorably. 

(/)  In  the  event  an  unfavorable  response  is  received  from 
the  officer  in  charge  at  the  port,  the  investigating  officer  shall 
notify  the  applicant  thereof,  advising  him  that  such  decision  is 
not  final,  but  that  he  may  appeal  therefrom  to  the  Commissioner- 
General  of  Immigration,  or  may,  if  he  so  desires,  depart  from 
the  country,  relying  upon  his  ability  to  produce  further  and 
more  satisfactory  evidence  on  his  return.  If  a favorable  response 
is  received  the  investigating  officer  shall  deliver  to  the  applicant 


Appendix  C. 


831 


the  duplicate  copy  of  the  application,  with  instructions  to  ex- 
change it  at  the  office  of  the  immigration  officer  in  charge  at  the 
port  of  departure  for  the  original  thereof.  The  triplicate  re- 
turned from  the  port  of  proposed  departure  and  the  duplicate 
copy  of  the  report,  of  the  transcript  of  testimony,  and  of  docu- 
mentary proofs  shall  be  placed  on  file  in  the  office  of  the  inspec- 
tor in  charge  of  the  district  (or  subdistrict,  as  the  local  practice 
may  require)  in  which  the  applicant  has  resided. 

{g)  Upon  the  arrival  of  the  applicant  at  the  port  of  departure 
and  the  presentation  by  him  of  the  duplicate  of  the  application, 
such  duplicate  shall  be  placed  on  file,  and  the  original,  with  the 
indorsement  of  approval  appearing  thereon  filled  out  and  signed, 
and  with  the  signature  and  seal  of  the  officer  in  charge  placed 
over  the  margin  of  the  photograph,  shall  be  delivered  to  the  ap- 
plicant for  use  upon  his  return.  At  time  of  departure  appli- 
cant’s address  in  the  country  to  which  he  is  going  shall  be  se- 
cured for  use  in  case  it  should  become  necessary  to  correspond 
with  him. 

(gg)  If  any  such  applicant  desires  to  have  a record  made  at 
the  port  of  departure  of  his  physical  condition  when  leaving  the 
country,  he  may  apply  for  a medical  examination  by  the  Public 
Health  and  Marine-Hospital  surgeon  detailed  to  the  Immigration 
Service  at  such  port,  the  surgeon’s  certificate  covering  such  ex- 
amination to  be  indorsed  upon  or  attached  to  the  duplicate  copy 
of  Form  431.  The  record  so  constituted  may  be  referred  to  on 
applicant’s  return  if  it  becomes  necessary  to  determine  whether 
he  contracted  before  leaving  this  country  a loathsome  or  danger- 
ous contagious  disease  or  tuberculosis. 

(h)  On  the  return  of  the  applicant  the  original  application 
shall  be  compared  with  the  duplicate  on  file,  and  with  the  person 
presenting  it,  and  if  the  officer  in  charge  is  satisfied  of  the  iden- 
tity of  such  person,  and  nothing  has  occurred  during  his  absence 
to  discredit  the  evidence  taken  on  the  preinvestigation,  he  shall 
be  promptly  admitted  without  further  examination  or  investiga- 
tion. The  original  application  shall  then  be  placed  in  the  files. 

(i)  This  rule  is  adopted  as  a privilege,  not  a requirement,  and 
precludes  no  one  from  deferring  the  submission  of  his  proofs  and 
the  determination  of  his  claimed  status  (primarily  by  an  officer 
in  charge  at  a port  and  finally  on  appeal  by  the  Secretary)  until 
application  is  made  for  reentry,  nor  from  leaving  the  country 


832 


Appendix  C. 


notwithstanding  an  adverse  decision  on  an  application  submitted 
under  this  rule  and  again  advancing  his  claim  on  returning  to  a 
port  of  the  United  States,  with  the  privilege  of  appeal  if  then 
rejected. 

(j)  Chinese  applying  for  preinvestigation  under  the  terms  of 
this  rule,  or  for  admission  without  having  taken  advantage  of 
the  rule,  on  the  ground  of  having  been  domiciled  in  the  United 
States  as  merchants,  shall  be  required  to  establish  to  a reasonable 
certainty  that  they  are  actually  owners  of  the  business  claimed 
or  members  of  the  firm  owning  such  business,  with  proofs  of  the 
amounts  actually  paid  for  their  respective  interests  and  the  times 
at  which  such  payments  were  made. 

Rule  16.  (a)  Any  Chinese  person  residing  in  the  United 

States  and  claiming  that,  by  reason  of  birth  in  this  country,  he 
is  lawfully  entitled  to  so  reside  in,  and  to  depart  from  and  re- 
turn to,  the  United  States,  who  desires  to  go  abroad  temporarily, 
may,  in  order  to  avoid  delay  in  securing  admission  upon  return 
to  one  of  the  ports  of  entry  named  in  Rule  1 hereof,  make  written 
application  to  the  immigration  officer  located  nearest  to  his  place 
of  residence  for  preinvestigation  of  his  said  claim,  such  applica- 
tion to  be  prepared  in  triplicate  on  Form  No.  430,  furnished  by 
said  immigration  officer,  and  to  be  filed  at  least  thirty  days  prior 
to  the  date  of  proposed  departure. 

(b)  To  each  of  the  three  copies  of  said  application  there  shall 

be  attached  a photograph  of  the  applicant  printed  from  the  same 
negative.  ^ k - ^ 

(c)  The  officer  to  whom  said  application  is  made  shall  obtain 
from  the  applicant  such  documentary  proofs  in  duplicate  of  his 
claim  as  he  may  possess,  and  shall  take  all  necessary  steps  (by 
correspondence  with  appropriate  government  officials)  to  ascer- 
tain whether  such  documents  are  genuine  and  relate  to  the  ap- 
plicant; and  shall  examine  the  applicant,  such  witnesses  as  he 
may  produce,  and  such  other  witnesses  as  may  be  necessary, 
causing  their  testimony  to  be  transcribed  in  duplicate : Provided 
That  the  applicant  shall  produce  all  of  his  witnesses  at  a time 
and  place  agreed  upon,  and  no  further  witnesses  will  be  ex- 
amined nor  additional  evidence  considered  at  his  request  unless 
it  is  clearly  shown  that  its  previous  production  was  impossible. 
It  is  not  permissible  to  incur  traveling  expenses  in  preinvesti- 
gating alleged  natives. 


Appendix  C. 


833 


(d)  Upon  completing  the  investigation  said  officer  shall,  after 
writing  his  signature  across  the  margin  of  the  photograph  at- 
tached to  each  copy  of  the  application,  forward  the  original  and 
triplicate  of  the  application,  the  documentary  proofs,  two  tran- 
scripts of  the  testimony,  and  his  report  of  his  investigation  of 
the  case,  to  the  immigration  official  in  charge  at  the  port  of 
proposed  departure.  If  applicant  proposes  to  cross  the  boun- 
dary at  a Canadian  border  port  and  embark  at  Vancouver,  the 
papers  shall  be  forwarded  to  the  inspector  in  charge,  Vancouver. 
If  he  proposes  to  make  a visit  to  Canada  merely,  the  papers  shall 
be  forwarded  to  the  inspector  in  charge,  Vancouver,  if  the  bor- 
der port  of  departure  is  Sumas ; to  the  inspector  in  charge,  Win- 
nipeg* if  the  border  port  is  Portal  or  Noyes ; to  the  commissioner 
of  immigration,  Montreal,  if  the  border  port  is  Detroit,  Buffalo, 
Malone,  Richford,  Lowelltown,  or  Vanceboro. 

(e)  The  official  in  charge  at  the  port  of  departure,  shall, 
upon  the  receipt  of  the  papers  named  in  the  preceding  para- 
graph, return  to  the  officer  from  whom  received  the  triplicate 
copy  of  the  application,  placing  thereon  a statement  as  to  whether 
or  not  he  is  satisfied,  on  the  evidence  presented,  to  indorse  the 
application  favorably. 

(/)  In  the  event  an  unfavorable  response  is  received  from 
the  officer  in  charge  at  the  port,  the  investigating  officer  shall 
notify  the  applicant  thereof,  advising  him  that  such  decision  is 
not  final,  but  that  he  may  appeal  therefrom  to  the  Commissioner- 
General  of  Immigration,  or  may,  if  he  so  desires,  depart  from  the 
country,  relying  upon  his  ability  to  produce  further  and  more 
satisfactory  evidence  on  his  return.  If  a favorable  response  is 
received,  the  investigating  officer  shall  deliver  to  the  applicant 
the  duplicate  copy  of  the  application,  with  instructions  to  ex- 
change it  at  the  office  of  the  immigration  officer  in  charge  at  the 
port  of  departure  for  the  original  thereof.  The  triplicate  re- 
turned from  the  port  of  proposed  departure  and  the  duplicate 
copy  of  the  report,  of  the  transcript  of  testimony,  and  of  docu- 
mentary proofs  shall  be  placed  on  file  in  the  office  of  the  in- 
spector in  charge  of  the  district  (or  subdistrict,  as  the  local 
practice  may  require)  in  which  the  applicant  has  resided. 

( g ) Upon  the  arrival  of  the  applicant  at  the  port  of  depart- 
ure and  the  presentation  by  him  of  the  duplicate  of  the  applica- 
tion, such  duplicate  shall  be  placed  on  file,  and  the  original,  with 


834 


Appendix  C. 


the  indorsement  of  approval  appearing  thereon  filled  out  and 
signed,  and  with  the  signature  and  seal  of  the  officer  in  charge 
placed  over  the  margin  of  the  photograph,  shall  be  delivered  to 
the  applicant  for  use  upon  his  return.  At  the  time  of  departure 
applicant’s  address  in  the  country  to  which  he  is  going  shall 
be  secured,  for  use  in  case  it  should  become  necessary  to  cor- 
respond with  him. 

( h ) On  the  return  of  the  applicant  the  original  application 
shall  be  compared  with  the  duplicate  on  file,  and  with  the  person 
presenting  it,  and  if  the  officer  in  charge  is  satisfied  of  the  identity 
of  such  person,  and  nothing  has  occurred  during  his  absence  to 
discredit  the  evidence  taken  on  the  preinvestigation,  he  shall  be 
promptly  admitted  without  further  examination  or  investiga- 
tion. The  original  application  shall  then  be  placed  in  the  files 
for  safekeeping  and  possible  future  use  by  the  applicant  should 
he  again  leave  the  United  States. 

(i)  This  rule  is  adopted,  in  response  to  a quite  general  de- 
mand, as  furnishing  a convenient  method  to  be  followed  by 
Chinese  residents  of  the  United  States  claiming  American  citizen- 
ship who  are  desirous  of  departing  from  the  country  with  as- 
surance of  prompt  readmission  on  return.  It  is  a privilege. 
not  a requirement , and  precludes  no  one  from  deferring  the  sub- 
mission of  his  proofs  and  the  determination  of  his  claimed  status 
(primarily  by  an  officer  in  charge  at  a port  and  finally  on  appeal 
by  the  Secretary)  until  application  is  made  for  reentry,  nor 
from  leaving  the  country  notwithstanding  an  adverse  decision 
on  an  application  submitted  under  this  rule  and  again  advancing 
his  claim  on  returning  to  a port  of  the  United  States,  with  the 
privilege  of  appeal  if  then  rejected. 

Rule  17.  Every  Chinese  laborer  seeking  the  privilege  of 
transit  through  the  United  States  to  foreign  territory  shall 
comply  with  the  following  requirements ; and  if  such  a person  is 
found,  in  the  judgment  of  the  officer  in  charge  at  the  port  of 
arrival,  to  be  seeking  the  privilege  of  transit  with  an  ulterior 
purpose  of  gaining  unlawful  access  to  the  United  States,  he  shall 
be  refused  permission  to  land: 

(a)  The  applicant  shall  produce  to  the  officer  in  charge  at 
the  port  of  arrival  a prepaid  ticket  across  the  whole  territory  of 
the  United  States,  land  or  water,  intended  to  be  traversed  (and 
to  his  alleged  foreign  destination  according  to  the  manifest  of 


Appendix  C. 


835 


the  vessel  on  which  he  arrives),  and  such  other  reasonable  proof 
as  may  be  required  to  satisfy  the  said  officer  that  a bona  fide 
transit  only  is  intended  and  that  the  applicant  has  not  the 
ulterior  purpose  of  gaining  access  to  the  United  States  in  viola- 
tion of  law;  and  such  ticket  and  evidence  must  be  so  stamped  or 
marked  and  dated  by  the  said  officer  as  to  prevent  their  use  a 
second  time.  No  such  applicant  shall  be  considered  as  intending 
in  good  faith  to  make  such  transit  only  if  he  has  already,  on  the 
same  arrival,  made  application  for  and  been  denied  admission  to 
the  United  States. 

(&)  The  applicant,  or  some  responsible  person  in  his  behalf, 
or  the  transportation  company  whose  through  ticket  he  holds, 
shall  furnish  to  the  said  officer  in  charge  a good  and  sufficient 
bond  in  the  penal  sum  of  $500,  conditioned  for  applicant’s  con- 
tinuous transit  through  and  actual  departure  from  the  United 
States  within  a reasonable  time,  not  exceeding  twenty  days  from 
the  date  said  privilege  is  granted ; but  the  said  bond  shall  not  be 
required  of  any  such  applicant  who  remains  on  ship-board  or 
who  is  transferred  from  one  vessel  to  another  vessel  in  a United 
States  port,  for  transit  through  the  water  territory  of  the  United 
States,  unless  the  vessel  on  which  applicant  departs  is  to  touch 
at  another  port  of  the  United  States  on  the  way  to  its  foreign 
destination. 

(c)  The  applicant  shall  furnish  to  said  officer  in  charge,  to 
be  taken  as  directed  by  said  officer,  a photograph  of  himself  in 
triplicate,  together  with  such  information  as  may  be  required. 

( d ) The  officer  in  charge  at  the  port  of  arrival  shall  prepare 
a descriptive  list,  to  which  one  of  the  photographs  required  by 
paragraph  (c)  shall  be  attached  for  file  in  his  office,  containing 
as  to  each  Chinese  laborer  applying  for  the  privilege  of  transit 
the  following  information:  Name,  age,  sex,  last  place  of  resi- 
dence, and  the  data  referred  to  therein  required  for  his  identifi- 
cation. To  the  said  descriptive  list  there  shall  be  attached  a 
dated  and  signed  statement  by  the  said  officer  in  charge  that 
applicant  has  complied  with  all  the  provisions  hereof,  and  that, 
being  assured  of  applicant’s  good  faith,  the  privilege  of  transit 
under  bond  has  been  accorded  him. 

( e ) Two  copies  of  the  bound  descriptive  list  required  by 
paragraph  ( d ) shall  be  prepared  by  the  officer  in  charge  on 
detached  blanks  corresponding  in  form  with  the  said  descriptive 


836 


Appendix  C. 


list,  to  each  of  which  shall  be  attached  one  of  the  photographs 
required  by  paragraph  (c),  and  upon  both  of  said  photographs, 
as  well  as  on  the  one  attached  to  said  bound  list,  shall  be  stamped 
the  seal  of  the  said  officer  in  charge,  so  placed  as  not  to  cover 
any  part  of  the  face.  One  of  said  copies  shall  be  forwarded  by 
the  first  mail  after  it  is  prepared  to  the  officer  in  charge  at  the 
intended  port  of  exit  and  the  remaining  one  shall  be  given  to  the 
conductor  of  the  train,  or  to  the  captain  of  the  vessel,  by  which 
the  Chinese  laborer  to  whom  they  relate  is  carried,  for  delivery 
to  the  said  officer  at  the  port  of  exit. 

(/)  One  of  the  copies  described  in  paragraph  (e)  shall  be 
retained  by  the  officer  in  charge  at  the  port  of  exit,  for  his  files 
and  the  other,  after  an  indorsement  has  been  made  thereon,  duly 
signed  and  dated,  to  the  effect  that  the  Chinese  laborer  named 
therein  has  been  identified  and  has  departed  from  the  United 
States,  shall  be  mailed  to  the  officer  by  whom  it  was  prepared, 
and  its  receipt  by  him,  duly  executed  as  herein  required,  shall 
be  his  authority  for  cancellation  of  the  bond  given  on  behalf  of 
the  Chinese  laborer. 

Rule  18.  No  Chinese  person  who  shall  satisfy  the  officer  itf 
charge  that  he  is  other  than  a laborer  (although  not  supplied 
with  the  certificate  provided  for  by  section  6 of  the  act  of  July 
5,  1884),  shall  be  required  to  comply  with  so  much  of  the  pro- 
visions of  Rule  17  as  requires  Chinese  persons  seeking  the  privi- 
lege of  transit  to  submit  photographs  of  themselves  and  to  be 
measured.  If,  however,  any  such  Chinese  person,  after  having 
been  admitted  to  pass  in  transit  through  the  United  States,  be 
found  therein  at  the  expiration  of  twenty  days  from  the  date  of 
such  admission,  he  shall  be  deemed  to  be  in  the  United  States 
in  violation  of  law  and  shall  be  deported. 

Rule  19.  ( a ) With  a view  to  afford  a proper  and  efficient 
means  of  identification  to  Chinese  persons,  or  persons  of  Chinese 
descent,  admittetd  or  readmitted  to  the  United  States  upon  proof 
of  their  status  as  members  of  the  classes  specifically  exempted 
from  the  excluding  provisions  of  the  Chinese-exclusion  laws,  or 
upon  proof  that  they  are  citizens  of  the  mainland  of  the  United 
States  by  birth  therein,  a certificate  of  identity,  of  which  the 
following  is  a copy,  shall  hereafter  be  issued  by  the  officer  in 
charge  at  the  port  of  entry  to  each  such  person  admitted  or  re- 
admitted to  this  country  by  him  who  may  apply  for  the  same; 


Appendix  C. 


837 


the  instructions  hereinafter  given  to  be  carefully  observed  in 
issuing  such  certificates : Provided,  That  only  one  such  certificate 
shall  be  issued  to  any  one  Chinese  person,  except  that  duplicates 
may  be  furnished  of  those  unavoidably  lost  or  destroyed,  under 
the  terms  of  paragraph  (h)  of  this  rule,  the  method  to  be  fol- 
lowed with  a view  to  preventing  a violation  of  this  proviso  being 
described  in  paragraph  ( i ) hereof. 

(&) 

No [Face]  Original; 

United  States  of  America. 

Certificate  of  Identity. 

Issued  in  conformity  with  a regulation  of  the  Department  of  Commerce  and 
Labor  adopted  March  19,  1909. 

This  is  to  certify  that  the  person  named  and  described  on  the  reverse  side 
hereof  has  been  regularly  admitted  to  the  United  States,  as  of  the  status 
indicated,  whereof  satisfactory  proof  has  been  submitted.  This  certificate 
is  not  transferable,  and  is  granted  solely  for  the  identification  and  protection 
of  said  Chinese  person  so  long  as  his  status  remains  unchanged;  to  insure 
the  attainment  of  which  object  an  accurate  description  of  said  person  is 
written  on  the  reverse  side  hereof,  and  his  photographic  likeness  is  attached, 
with  his  name  written  partly  across,  and  the  official  seal  of  the  United 
States  Immigration  officer  signing  this  certificate  impressed  partly  over, 
said  photograph.1 

(c)  The  certificates  are  printed  from  engraved  plates,  num- 
bered consecutively,  and  bound  in  books  containing  50  each,  an 
original  and  a duplicate  of  each  number  being  furnished,  ar- 
ranged the  latter  above  the  former  for  convenience  in  copying 
from  one  to  the  other,  and  perforated  to  permit  of  easy  detach- 
ment from  the  book  and  from  each  other. 

(d)  In  issuing  said  certificates  care  shall  be  exercised  to 
have  the  original  and  the  duplicate  correspond  in  every  detail. 
All  blank  spaces  remaining  after  writing  in  the  data  required 
to  complete  the  identification  of  the  person  to  whom  the  certi- 
ficate is  issued  shall  be  covered  by  ruled  lines,  so  as  to  prevent 
the  insertion  of  any  additional  word  or  words  without  detection. 
The  copy  of  certificate  herein  given  has  been  so  printed  as  to 
furnish  an  illustration  of  the  manner  in  which  such  certificate 
should  be  prepared,  except  that  the  seal  should  be  impressed 


1 Reverse  omitted. 


838 


Appendix  C. 


across  the  margin  of  the  photograph  near  the  center  of  the 
certificate. 

(e)  These  certificates  being  issued  as  an  accomodation  to 
Chinese  persons,  such  persons  as  may  apply  for  same  shall  be 
required  to  furnish  two  unmounted  photographs,  of  suitable 
quality,  of  themselves,  printed  from  a negative  that  has  not  been 
retouched,  representing  the  subject  without  hat,  full  front  view, 
showing  both  ears,  measuring  1^4  inches  from  top  of  head  to 
point  of  chin.  The  photograph  shall  be  attached  to  the  certi- 
ficate with  great  care  to  insure  permanency  and  prevent  warp- 
ing. The  height  shall  be  carefully  taken  and  inserted  in  feet  and 
inches,  and  in  recording  physical  marks  and  peculiarities  those 
which  are  the  most  prominent  and  the  least  likely  to  be  ob- 
literated by  lapse  of  time  shall  be  selected.  In  recording  the 
status  as  of  which  admitted,  the  address  to  which  proceeding 
shall  be  given,  if  possible. 

(/)  These  certificates,  as  shown  on  their  face,  are  issued 
for  the  protection  and  identification  of  Chinese  of  the  exempt 
classes  only  so  long  as  such  persons  shall  retain  their  exempt 
status,  and  are  not  transferable.  Therefore,  when  such  a certi- 
ficate is  found  by  an  inspector  in  the  possession  of  a person,  not 
a United  States  citizen,  engaged  in  the  performance  of  manual 
labor,  or  of  a person  to  whom  it  does  not  relate  as  shown  by  a 
comparison  of  such  person  with  the  photograph  and  personal 
description  appearing  thereon,  or  if  at  any  time  it  should  develop 
that  such  certificate  has  been  obtained  by  fraud,  the  certificate 
shall  be  taken  up  and  forwarded  to  the  Bureau  of  Immigration 
and  Naturalization,  with  report  of  the  circumstances,  for  de- 
cision whether  it  shall  be  canceled. 

(g)  The  duplicates  of  the  certificates  shall  be  forwarded  to 
the  Bureau  of  Immigration  and  Naturalization  promptly  upon 
the  issuance  of  the  originals,  in  order  that  such  duplicates  may 
be  safely  filed  for  future  reference. 

( h ) If  such  a certificate  of  identification  shall  be  unavoidably 
lost  or  destroyed  at  any  time,  a certificate  in  lieu  thereof  will  be 
issued  by  the  Bureau  of  Immigration  and  Naturalization  upon 
the  applicant’s  furnishing  satisfactory  proof  of  the  unavoidable 
loss  or  destruction  of  such  certificate,  of  his  identity  as  the  per- 
son to  whom  it  was  originally  issued,  and  of  his  exempt  status. 

( i ) With  a view  to  prevent  the  issuance  of  more  than  one 


Appendix  C. 


839 


certificate  of  identity  to  any  one  Chinese  person,  officers  in 
charge  at  ports  of  entry  shall  render  to  each  of  the  other  officers 
in  charge  at  such  ports  quarterly  reports,  giving  the  names  and 
descriptions  of  all  persons  to  whom  such  certificates  have  been 
issued. 

O')  The  certificate  of  identity  when  issued  to  Chinese  of  the 
exempt  classes  is  granted  solely  for  the  protection  of  such  Chinese 
while  residing  in  the  United  States  and  retaining  an  exempt 
status,  and  will  not,  therefore,  be  accepted  as  satisfactory  evi- 
dence in  any  other  connection.  For  example,  a domiciled  exempt 
holding  such  a certificate  of  identity  will  not  he  excused  from 
a compliance  with  the  terms  of  par.  ( j ) of  Rule  15.  The  cer- 
tificate may,  however,  be  accepted  as  evidence  of  a former  ad- 
mission as  of  an  exempt  status,  and  be  given  such  cumulative 
value  as  the  circumstances  of  a case  justify.  When  issued  to  a 
person  of  Chinese  descent,  as  a United  States  citizen  by  birth  on 
the  mainland,  the  certificate  will  be  accepted  at  all  times  there- 
after as  evidence  of  such  citizenship;  extreme  caution  to  he  ob- 
served, however,  in  determining  whether  the  certificate  is  genuine 
and  in  the  hands  of  the  person  to  whom  issued:  Provided,  al- 
waxjs,  That  fraud  has  not  been  perpetrated  upon  the  Govern- 
ment in  securing  its  issuance. 

( k ) Upon  the  issuance  of  the  certificate  of  identity  herein 
prescribed,  all  other  certificates  or  papers  offered  by  Chinese 
exempts  or  natives  to  establish  their  right  of  admission  to  the 
United  States  shall  be  retained  by  the  officer  at  the  port  of  entry. 

Rule  20.  (a)  An  original  certificate  of  residence  can  he 
issued  to  a Chinese  laborer  only  upon  the  finding  of  a justice, 
judge,  or  commissioner  of  a United  States  court  that  such  Chinese 
laborer  was  a resident  of  the  United  States  during  the  period  of 
registration  and  that,  by  reason  of  accident,  sickness,  or  other 
unavoidable  cause  he  was  then  unable  to  secure  such  a certificate. 

(&)  The  authority,  power,  and  jurisdiction  in  relation  to  the 
registration  of  Chinese  lawfully  resident  in  the  United  States, 
formerly  vested  by  law  in  collectors  of  internal  revenue,  have 
been  transferred  to  the  Commissioner-General  of  Immigration, 
Washington,  D.  C.,  to  whom,  therefore,  applications  for  original 
certificates  should  he  addressed,  accompanied  by  a certified 
transcript  of  a judicial  finding  of  the  character  described  in 
paragraph  (a)  hereof. 


840 


Appendix  C. 


Rule  21.  Duplicate  certificates  of  residence  shall  be  issued 
only  upon  satisfactory  proof  to  the  Commissioner-General  of 
Immigration  that  the  Chinese  person  upon  whose  behalf  applica- 
tion therefor  is  made  has  actually,  by  unavoidable  accident,  lost 
his  original  certificate.  Applications  for  such  certificates  should 
be  addressed  to  the  Commissioner-General  of  Immigration,  Wash- 
ington, D.  C.,  should  be  sworn  to,  and  should  contain  the  follow- 
ing data:  s 

(1)  Applicants  name;  also  any  other  names  known  by  at) 
time  of  registration. 

(2)  Number  of  original  certificate  of  residence,  if  obtainable. 

(3)  Whether  original  certificate  was  issued  under  act  ap- 
proved May  5,  1892,  or  act  approved  November  3,  1893,  amenda- 
tory thereof. 

(4)  Place  and  at  least  approximate  date  of  issue  of  original 
certificate. 

(5)  Applicant’s  place  of  residence,  town,  street,  and  num- 
ber, and  occupation  at  time  of  issuance  of  original  certificate. 

(6)  Applicant’s  present  place  of  residence  and  occupation. 

(7)  Applicant’s  present  age  and  exact  height,  color  of  his 
eyes  and  complexion,  and  any  physical  marks  or  peculiarities 
that  would  aid  in  his  identification. 

(8)  A statement  of  the  circumstances  under  which  original 
certificate  was  lost,  including  date,  place,  and  every  detail  of 
such  loss. 

(9)  Affidavits  of  witnesses  familiar,  of  their  own  personal 
knowledge,  with  the  circumstances  of  the  loss. 

(10)  Two  unmounted  photographs  of  applicant  from  a nega- 
tive that  has  not  been  retouched,  full  front  view,  showing  both 
ears,  about  3 by  3 inches  square,  head  1%  inches  long  from  top 
of  head  to  point  of  chin — one  to  be  attached  to  the  duplicate,  if 
issued,  the  other  to  be  retained  in  the  files  of  the  Bureau. 

(11)  Time  of  applicant’s  first  arrival  in  the  United  States 
and  port  of  landing. 

(12)  Name  of  witness  to  original  application  for  registra- 
tion. 

Rule  22.  (a)  Officers  shall  not  issue  any  certificate,  letter, 
or  other  document,  or  any  duplicate  thereof,  other  than  those 
provided  for  by  law  and  these  regulations,  setting  forth  the 


Appendix  C. 


841 


status  of  a Chinese  person  as  a resident  of  this  country,  or  other- 
wise indorsing  such  person. 

_ (6)  Certificates  of  residence  issued  to  Chinese  laborers,  if 
found  elsewhere  than  in  possession  of  persons  to  whom  issued, 
shall  be  taken  up  and  forwarded  to  the  Bureau  of  Immigration 
and  Naturalization. 

Rule  23.  (a)  Chinese  found  in  the  United  States  engaged 
in  laboring  pursuits  and  not  having  in  their  possession  a certi- 
ficate issued  under  either  the  Act  of  May  5,  1892,  or  the  Act  of 
November  3,  1893,  or  other  satisfactory  evidence  of  their  right 
to  be  and  remain  in  the  country,  are  Subject  to  arrest  and  de- 
portation. Full  opportunity  to  produce  the  certificate  or  othei 
evidence  shall  always  be  accorded,  under  proper  safeguards,  be- 
fore taking  a Chinese  laborer  before  a justice,  judge,  or  com- 
missioner of  a United  States  Court  and  swearing  out  a warrant 
for  his  commitment  and  trial. 

(&)  Orders  for  the  deportation  of  Chinese  arrested  and  tried 
in  accordance  with  the  Chinese-exclusion  laws  can  be  issued 
only  by  a justice,  judge,  or  commissioner  of  a United  States 
court  upon  his  decision  that  such  Chinese  have  been  found  to  be 
unlawfully  in  the  United  States. 

(c)  Aliens,  including  Chinese,  who  enter  the  United  States 
surreptitiously  “shall  be  adjudged  to  have  entered  the  country 
unlawfully  and  shall  be  deported  as  provided  in  sections  20  and 
21”  of  the  immigration  act  (section  36).  Therefore,  in  arrest- 
ing aliens,  including  Chinese,  who  have  entered  the  United 
States  in  violation  of  the  immigration  law  and  regulations,  im- 
migration officials  should  follow  the  procedure  prescribed  in  the 
“Rules  relating  to  deportation”  of  the  Immigration  Regula- 
tions of  July  1,  1907  (Rules  31-39),  so  far  as  said  regulations 
are  practically  applicable  to  such  cases. 

Rule  24.  To  insure  the  identification  of  Chinese  arrested 
within  the  United  States,  the  following  instructions  shall  be  ob- 
served with  respect  to  the  photographing  of  such  Chinese,  the 
expense  thereof  to  be  borne  by  the  appropriation  “Expenses  of 
regulating  immigration”  (Chinese). 

(a)  Every  Chinese  person  arrested  under  the  exclusion  laws 
by  an  immigration  or  other  official  will  be  photographed  im- 
mediately upon  the  consummation  of  the  arrest,  the  photograph 
to  be  prepared  in  triplicate  and  not  retouched  nor  mounted,  one 


842 


Appendix  C. 


copy  to  be  attached  to  the  United  States  court  or  commissioner’s 
docket,  one  to  be  furnished  the  officer  in  charge  of  the  district  in 
which  the  arrest  occurs,  and  the  other  to  be  attached  (in  the 
event  that  deportation  is  finally  ordered)  to  the  writ  of  de- 
portation. 

(6)  When  arrests  occur  at  stations  the  officers  of  which  are 
supplied  with  photographers ’ apparatus,  the  photographs  will  be 
made  by  such  officers;  when  in  other  localities,  the  immigration 
officers  will  have  the  photographs  made  by  local  photographers 
at  the  least  possible  expense  compatible  with  a proper  per- 
formance of  the  work,  bills  therefor  to  be  rendered  on  the  blank 
vouchers  supplied  for  rendering  accounts. 

(c)  The  copy  of  the  photograph  attached  to  the  docket  of  the 
court  or  commissioner  should  be  permanently  affixed  thereto 
and  in  such  manner  as  to  render  as  remote  as  possible  the  chance 
of  any  change  or  substitution  being  made. 

( d ) The  copy  furnished  the  officer  in  charge  of  the  district 
will  be  placed  in  his  office  records,  together  with  a short  history 
of  the  case  to  which  it  relates,  being  filed  in  such  manner  as  to 
furnish  a comprehensive  record  that  can  be  readily  referred  to 
when  needed  at  any  future  time. 

(e)  The  copy  attached  to  the  writ  in  case  of  deportation 
should  be  affixed  permanently  thereto,  and  in  such  manner  as  to 
prevent  the  substitution  of  some  other  photograph  therefor  (the 
best  method  of  obtaining  this  result  being  the  impression  of  the 
court  or  commissioner’s  seal  over  the  edge  of  such  photograph, 
but  in  such  a way  as  not  to  mar  or  deface  the  features  represented 
thereby),  the  objects  of  its  use  being  to  afford  a means  of  identi- 
fying the  alien  as  the  person  referred  to  in  the  writ,  and  to 
supply  the  immigration  official  at  the  port  of  deportation  with  a 
means  of  identifying  the  person  delivered  on  board  the  vessel  as 
such  person. 

(f)  Inspectors  should  request,  and  will  undoubtedly  receive, 
the  full  cooperation  of  commissioners  or  judges  and  marshals 
or  deputy  marshals,  so  far  as  necessary,  in  carrying  out  the 
above  instructions. 

Rule  25.  The  appropriation  “Expenses  of  regulating  im- 
migration” (Chinese)  should  be  charged  with  the  expense  of 
deporting  Chinese  aliens  arrested  under  paragraph  (c)  of  Rule 


Appendix  C. 


843 


23,  and  with  the  following  expenses  connected  with  the  deporta- 
tion of  Chinese  under  paragraph  (a)  thereof: 

(a)  The  cost  of  maintenance  of  Chinese  persons  who  are 
taken  into  custody  up  to  and  including  the  date  upon  which 
warrant  issued  by  a United  States  judge  or  commissioner  is  re- 
ceived by  the  marshal. 

(b)  The  cost  of  maintenance  of  Chinese  prisoners  com- 
mencing with  the  date  writ  of  deportation  is  first  received  by 
the  marshal,  and  in  case  of  appeal,  cost  of  maintenance  up  to 
the  date  of  such  appeal,  and  from  the  date  of  receipt  by  the 
marshal  of  the  court’s  orders  dismissing  the  appeal. 

( c ) The  cost  of  deportation,  including  railroad  and  steam- 
ship fares  of  prisoners  and  marshal  or  deputy,  authorized  ex- 
penses for  guard  hire,  and  maintenance  en  route. 

Upon  receiving  writs  of  deportation  marshals  should  at  once 
make  written  report  to  the  Commissioner-General  of  Immigra- 
tion, Department  of  Commerce  and  Labor,  Washington,  D.  C., 
giving  names  of  the  prisoners,  where  confined  in  jail,  and  when 
the  period  of  appeal  provided  by  section  13  of  the  Act  approved 
September  13,  1888,  will  expire.  Instructions  will  then  be  is- 
sued as  to  the  route  to  be  followed,  number  of  guards  to  be  em- 
ployed, and  to  whom  accounts  are  to  be  presented  or  forwarded 
for  settlement. 

Rule  26.  Under  the  authority  conferred  by  section  7 of  the 
act  approved  February  14,  1903,  entitled  “An  act  to  establish 
the  Department  of  Commerce  and  Labor,”  the  authority,  power, 
and  jurisdiction  in  relation  to  the  exclusion  of  Chinese  persons 
and  persons  of  Chinese  descent  heretofore  vested  by  law  in  col- 
lectors of  customs  have  been  conferred  upon  and  vested  in 
officers  in  charge  of  districts  (or  inspectors  acting  under  their 
direction)  as  follows,  such  officers  being  under  the  control  of  the 
Commissioner-General  of  Immigration;1  and,  pursuant  to  the 
said  authority,  the  Chinese  and  immigrant  inspectors  in  the 
United  States  Immigration  Service  are  hereby  designated  to 
exercise  the  powers  of  arrest  conferred  upon  United  States 
customs  officials  and  collectors  of  internal  revenue  and  their 
deputies,  by  section  6 of  the  act  approved  May  5,  1892  (27  Stat.. 
p.  25),  as  amended  by  section  1 of  the  act  approved  November  3, 
1893  (28  Stat.,  p.  7). 

1 For  list  of  ports  of  entry,  see  Buie  1. 


844 


Appendix  C. 


Dist. 

No. 


Title  of  officer. 


Location  of  head- 
quarters. 


Extent  of  districts. 


10 

11 

12 

13 

14 

15 

16 


17 


Commissioner  of  Immigra-  Montreal,  P.  Q., 


tion. 

Commissioner  of  Immigra- 
tion. 


Chinese  inspector  in  charge. 

Commissioner  of  Immigra- 
tion. 


Commissioner  of  Immigra- 
tion. 


Canada. 
Boston,  Mass.. 


17  State  street, 
New  York,  N.  Y. 
Philadelphia,  Pa.. 


Canadian  border  and  Cana- 
dian seaports 

New  England  States,  includ- 
ing port  of  Boston  and 
subports  of  Portland  and 
New  Bedford. 

New  York  and  New  Jersey. 


Inspector  in  Charge. 


Inspector  in  Charge 


Commissioner  of  Immigra- 
tion. 


Inspector  in  Charge , 


Inspector  in  Charge. 

Inspector  in  Charge. 
Inspector  in  Charge. 
Inspector  in  Charge . 
Inspector  in  Charge. 

Inspector  in  Charge. 


Commissioner  of  Immigra- 
tion. 


Inspector  in  Charge . 


Pennsylvania,  Delaware, 
and  West  Virginia ; port 
of  Philadelphia  and  sub- 
stations of  Pittsburg, 
Chester,  and  Wilming- 
ton. 

Baltimore,  Md. . . . Maryland  and  District  of 
Columbia  ; port  of  Balti- 
more and  subports  of 
Annapolis  and  Washing- 
ton. 

Norfolk,  Va Virginia,  North  Carolina, 

and  South  Carolina  ; port 
of  Norfolk  and  subports  of 
Newport  News,  Wilming- 
ton and  Charleston. 

Tampa,  Fla Georgia,  Florida,  and  Ala- 

bama ; port  of  Tampa  and 
subports  of  Savannah, 
Brunswick,  Jacksonville, 
Miami,  Key  West,  Pensa- 
cola, and  Mobile. 

New  Orleans,  La. . . Louisiana,  Mississippi,  Ar- 
kansas, and  Tennessee ; 
port  of  New  Orleans  and 
subports  of  Gulfport  and 

PclSC£l^OUlSl* 

Galveston,  Tex. . . . Port  of  Galveston  and  sub- 
ports of  Port  Arthur  and 
Corpus  Christi,  Tex. ; ter- 
ritory bounded  on  the 
north  and  east  by  the  Lou- 
isiana-Texas  border  and 
the  Gulf  of  Mexico  ; oit  the 
west  by  the  westerly 
boundaries  of  the  follow- 
ing counties  in  Texas : 
Shelby,  Nacogdoches,  An- 
gelina, Polk,  San  Jacinto, 
Montgomery,  Harris,  Fort 
Bend,  Wharton,  Jackson, 
Victoria,  Refugio,  San 
Patricio,  and  Nueces  ; and 
on  the  south  by  the 
southerly  boundary  of 
Nueces  County,  Texas. 

Cleveland,  Ohio . . . Ohio  and  Kentucky  ; sub- 
stations at  Toledo  and 
Columbus. 

Chicago,  111 Illinois,  Indiana,  Michigan, 

and  Wisconsin. 

Minneapolis,  Minn,  i Minnesota  and  North  and 
South  Dakota. 

Missouri,  Iowa,  Nebraska, 
Kansas,  and  Oklahoma. 
Colorado,  Wyoming,  and 
Utah ; substation  at  Salt 
Lake  City. 

Helena,  Mont Montana  and  Idaho ; sub- 

station at  Havre,  Mont. 

Seattle,  Wash Washington  ; port  of  Seat- 

tle and  subports  of  Taco- 
ma, Port  Townsend,  and 
Olympia ; substations  of 
Spokane  and  Walla  Walla. 
Portland,  Oreg.  ..  Oregon ; port  of  Portland 
and  subport  of  Astoria. 


St.  Louis,  Mo . . 
Denver,  Colo . . . 


Appendix  C. 


845 


18 

20 

21 

22 

231 


Commissioner  of  Immigra- 
tion. 

Inspector  in  Charge 


San  Francisco,  Cal. 

Ketchikan,  Alas- 
ka. 


Commissioner  of  Immigra- 
tion. 

Inspector  in  Charge 

Supervising  Inspector 


San  Juan,  P.  R. .. 

Honolulu,  Hawaii . 
El  Paso,  Tex 


Northern  California  and 

Nevada ; port  of  San 
Francisco. 

Alaska ; port  of  Ketchikan 
and  substations  of  Skag- 
way  and  Nome. 

Porto  Rico ; port  of  San 
Juan  and  subport  of 
Ponce. 

Territory  of  Hawaii,  includ- 
ing all  ports. 

Texas  (except  Galveston 
district,  No.  9),  New 

Mexico,  and  Arizona ; 

port  of  El  Paso ; subports 
of  Nogales,  Douglas,  Na- 
co,  Del  Rio,  Eagle  Pass, 
Laredo,  Hidalgo,  and 

Brownsville ; substations 
of  San  Antonio,  Tucson, 
and  Fort  Worth.  South- 
ern California ; port  of 
San  Diego  and  substations 
of  Los  Angeles  and  An- 
drade. 


1 Former  District  No.  19  has  been  combined  with  No.  23. 

Danl.  J.  Keefe, 

Commissioner-General  of  Immigration. 
Approved,  April  15,  1912. 

Benj.  S.  Cable, 

Acting  Secretary. 


846 


Appendix  D. 


APPENDIX  D 

WHITE  SLAVE  TRAFFIC  ACT 

Act  of  June  25,  1910  (36  Stat.,  825). 

AN  ACT  To  further  regulate  interstate  and  foreign  commerce  by  prohibit- 
ing the  transportation  therein  for  immoral  purposes  of  women  and  girls, 
and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  Rouse  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled , That  the 
term  “interstate  commerce,”  as  used  in  this  Act,  shall  include 
transportation  from  any  State  or  Territory  or  the  District  of 
Columbia  to  any  other  State  or  Territory  or  the  District  of 
Columbia,  and  the  term  “foreign  commerce,”  as  used  in  this 
Act,  shall  include  transportation  from  any  State  or  Territory 
or  the  District  of  Columbia  to  any  foreign  country  and  from 
any  foreign  country  to  any  State  or  Territory  or  the  District  of 
Columbia. 

Sec.  2.  That  any  person  who  shall  knowingly  transporter 
cause  to  be  transported,  or  aid  or  assist  in  obtaining  transporta- 
tion for,  or  in  transporting,  in  interstate  or  foreign  commerce, 
or  in  any  Territory  or  in  the  District  of  Columbia,  any  woman 
or  girl  for  the  purpose  of  prostitution  or  debauchery,  or  for  any 
other  immoral  purpose,  or  with  the  intent  and  purpose  to  induce, 
entice,  or  compel  such  woman  or  girl  to  become  a prostitute  or  to 
give  herself  up  to  debauchery,  or  to  engage  in  any  other  immoral 
practice;  or  who  shall  knowingly  procure  or  obtain,  or  cause  to 
be  procured  or  obtained,  or  aid  or  assist  in  procuring  or  ob- 
taining, any  ticket  or  tickets,  or  any  form  of  transportation  or 
evidence  of  the  right  thereto,  to  be  used  by  any  woman  or  girl 
in  interstate  or  foreign  commerce,  or  in  any  Territory  or  the 
District  of  Columbia,  in  going  to  any  place  for  the  purpose  of 
prostitution  or  debauchery,  or  for  any  other  immoral  purpose, 
or  with  the  intent  or  purpose  on  the  part  of  such  person  to  in- 
duce, entice,  or  compel  her  to  give  herself  up  to  the  practice  of 
prostitution,  or  to  give  herself  up  to  debauchery,  or  any  other 


Appendix  D. 


847 


immoral  practice,  whereby  any  such  woman  or  girl  shall  be 
transported  in  interstate  or  foreign  commerce,  or  in  any  Terri- 
tory or  the  District  of  Columbia,  shall  be  deemed  guilty  of  a 
felony,  and  upon  conviction  thereof  shall  be  punished  by  a fine 
not  exceeding  five  thousand  dollars,  or  by  imprisonment  of  not 
more  than  five  years,  or  by  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court. 

Sec.  3.  That  any  person  who  shall  knowingly  persuade,  in- 
duce, entice,  or  coerce,  or  cause  to  be  persuaded,  induced,  en- 
ticed, or  coerced,  or  aid  or  assist  in  persuading,  inducing,  en- 
ticing, or  coercing  any  woman  or  girl  to  go  from  one  place  to 
another  in  interstate  or  foreign  commerce,  or  in  any  Territory  or 
the  District  of  Columbia,  for  the  purpose  of  prostitution  or  de- 
bauchery, or  for  any  other  immoral  purpose,  or  with  the  intent 
and  purpose  on  the  part  of  such  person  that  such  woman  or  girl 
shall  engage  in  the  practice  of  prostitution  or  debauchery,  or 
any  other  immoral  practice,  whether  with  or  without  her  consent, 
and  who  shall  thereby  knowingly  cause  or  aid  or  assist  in 
causing  such  woman  or  girl  to  go  and  to  be  carried  or  trans- 
ported as  a passenger  upon  the  line  or  route  of  any  common 
carrier  or  carriers  in  interstate  or  foreign  commerce,  or  any 
Territory  or  the  District  of  Columbia,  shall  be  deemed  guilty  of 
a felony  and  on  conviction  thereof  shall  be  punished  by  a fine 
of  not  more  than  five  thousand  dollars,  or  by  imprisonment  for 
a term  not  exceeding  five  years,  or  by  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the  court. 

Sec.  4.  That  any  person  who  shall  knowingly  persuade,  in- 
duce, entice,  or  coerce  any  woman  or  girl  under  the  age  of 
eighteen  years  from  any  State  or  Territory  or  the  District  of 
Columbia  to  any  other  State  or  Territory  or  the  District  of 
Columbia,  with  the  purpose  and  intent  to  induce  or  coerce  her. 
or  that  she  shall  be  induced  or  coerced  to  engage  in  prostitution 
or  debauchery,  or  any  other  immoral  practice,  and  shall  in 
furtherance  of  such  purpose  knowingly  induce  or  cause  her  to 
go  and  to  be  carried  or  transported  as  a passenger  in  interstate 
commerce  upon  the  line  or  route  of  any  common  carrier  or  car- 
riers, shall  be  deemed  guilty  of  a felony,  and  on  conviction 
thereof  shall  be  punished  by  a fine  of  not  more  than  ten  thousand 
dollars,  or  by  imprisonment  for  a term  not  exceeding  ten  years. 


848 


Appendix  D. 


or  by  both  such  fine  and  imprisonment,  in  the  discretion  of  the 
court. 

Sec.  5.  That  any  violation  of  any  of  the  above  sections  two. 
three,  and  four  shall  be  prosecuted  in  any  court  having  juris- 
diction of  crimes  within  the  district  in  which  said  violation  was 
committed,  or  from,  through,  or  into  which  any  such  woman  or 
girl  may  have  been  carried  or  transported  as  a passenger  in  in- 
terstate or  foreign  commerce,  or  in  any  Territory  or  the  District 
of  Columbia,  contrary  to  the  provisions  of  any  of  said  sections. 

Sec.  6.  That  for  the  purpose  of  regulating  and  preventing 
the  transportation  in  foreign  commerce  of  alien  women  and  girls 
for  purposes  of  prostitution  and  debauchery,  and  in  pursuance 
of  and  for  the  purpose  of  carrying  out  the  terms  of  the  agree- 
ment or  project  of  arrangement  for  the  suppression  of  the  white- 
slave  traffic,  adopted  July  twenty-fifth,  nineteen  hundred  and 
two,  for  submission  to  their  respective  governments  by  the  de- 
legates of  various  powers  represented  at  the  Paris  conference 
and  confirmed  by  a formal  agreement  signed  at  Paris  on  May 
eighteenth,  nineteen  hundred  and  four,  and  adhered  to  by  the 
United  States  on  June  sixth,  nineteen  hundred  and  eight,  as 
shown  by  the  proclamation  of  the  President  of  the  United  States, 
dated  June  fifteenth,  nineteen  hundred  and  eight,  the  Commis- 
sioner-General of  Immigration  is  hereby  designated  as  the  au- 
thority of  the  United  States  to  receive  and  centralize  informa- 
tion concerning  the  procuration  of  alien  women  and  girls  with 
a view  to  their  debauchery,  and  to  exercise  supervision  over 
such  alien  women  and  girls,  receive  their  declarations,  establish 
their  identity,  and  ascertain  from  them  who  induced  them  to 
leave  their  native  countries,  respectively;  and  it  shall  be  the 
duty  of  said  Commissioner- General  of  Immigration  to  receive 
and  keep  on  file  in  his  office  the  statements  and  declarations 
which  may  be  made  by  such  alien  women  and  girls,  and  those 
which  are  hereinafter  required  pertaining  to  such  alien  women 
and  girls  engaged  in  prostitution  or  debauchery  in  this  country, 
and  to  furnish  receipts  for  such  statements  and  declarations 
provided  for  in  this  Act  to  the  persons,  respectively,  making  and 
filing  them. 

Every  person  who  shall  keep,  maintain,  control,  support,  or 
harbor  in  any  house  or  place  for  the  purpose  of  prostitution,  or 
for  any  other  immoral  purpose,  any  alien  woman  or  girl  within 


Appendix  D. 


849 


three  years  after  she  shall  have  entered  the  United  States  from 
any  country,  party  to  the  said  arrangement  for  the  suppression 
of  the  white-slave  traffic,  shall  file  with  the  Commissioner- 
General  of  Immigration  a statement  in  writing  setting  forth  the 
name  of  such  alien  woman  or  girl,  the  place  at  which  she  is  kept; 
and  all  facts  as  to  the  date  of  her  entry  into  the  United  States, 
the  port  through  which  she  entered,  her  age,  nationality,  and 
parentage,  and  concerning  her  procuration  to  come  to  this 
country  within  the  knowledge  of  such  person,  and  any  person 
who  shall  fail  within  thirty  days  after  such  person  shall  com- 
mence to  keep,  maintain,  control,  support,  or  harbor  in  any 
house  or  place  for  the  purpose  of  prostitution,  or  for  any  other 
immoral  purpose,  any  alien  woman  or  girl  within  three  years 
after  she  shall  have  entered  the  United  States  from  any  of  the 
countries,  party  to  the  said  arrangement  for  the  suppression  of 
the  white-slave  traffic,  to  file  such  statement  concerning  such 
alien  woman  or  girl  with  the  Commissioner-General  of  Immigra- 
tion, or  who  shall  knowingly  and  willfully  state  falsely  or  fail 
to  disclose  in  such  statement  any  fact  within  his  knowledge  or 
belief  with  reference  to  the  age,  nationality,  or  parentage  of  any 
such  alien  woman  or  girl,  or  concerning  her  procuration  to  come 
to  this  country,  shall  be  deemed  guilty  of  a misdemeanor,  and  on 
conviction  shall  be  punished  by  a fine  of  not  more  than  two 
thousand  dollars,  or  by  imprisonment  for  a term  not  exceeding 
two  years,  or  by  both  such  fine  and  imprisonment,  in  the  dis- 
cretion of  the  court. 

In  any  prosecution  brought  under  this  section,  if  it  appear 
that  any  such  statement  required  is  not  on  file  in  the  office  of 
the  Commissioner-General  of  Immigration,  the  person  whose 
duty  it  shall  be  to  file  such  statement  shall  be  presumed  to  have 
failed  to  file  said  statement,  as  herein  required,  unless  such  per- 
son or  persons  shall  prove  otherwise.  No  person  shall  be  ex- 
cused from  furnishing  the  statement,  as  required  by  this  section, 
on  the  ground  or  for  the  reason  that  the  statement  so  required 
by  him,  or  the  information  therein  contained,  might  tend  to 
criminate  him  or  subject  him  to  a penalty  or  forfeiture,  but  no 
person  shall  be  prosecuted  or  subjected  to  any  penalty  or  for- 
feiture under  any  law  of  the  United  States  for  or  on  account  of 
any  transaction,  matter  or  thing,  concerning  which  he  may  truth- 


850 


Appendix  D. 


fully  report  in  such  statement,  as  required  by  the  provisions  of 
this  section. 

Sec.  7.  That  the  term  ‘ 1 Territory , ’ ’ as  used  in  this  Act, 
shall  include  the  district  of  Alaska,  the  insular  possessions  of 
the  United  States,  and  the  Canal  Zone.  The  word  “ person/ ’ as 
used  in  this  Act,  shall  be  construed  to  import  both  the  plural 
and  the  singular,  as  the  case  demands,  and  shall  include  cor- 
porations, companies,  societies,  and  associations.  When  con- 
struing and  enforcing  the  provisions  of  this  Act,  the  act,  omis- 
sion, or  failure  of  any  officer,  agent,  or  other  person,  acting  for 
or  employed  by  any  other  person  or  by  any  corporation,  com- 
pany, society,  or  association  within  the  scope  of  his  employment 
or  office,  shall  in  every  case  be  also  deemed  to  be  the  act,  omis- 
sion, or  failure  of  such  other  person,  or  of  such  company,  cor- 
poration, society,  or  association,  as  well  as  that  of  the  person 
himself. 

Sec.  8.  That  this  Act  shall  be  known  and  referred  to  as  the 
White-slave  traffic  Act.” 


Approved,  June  25,  1910. 


Appendix  E. 


851 


APPENDIX  E 

ACTS  OF  THE  PHILIPPINE  COMMISSION 

Act  No.  317  of  the  Philippine  Commission. 

Sec.  1.  No  Chinaman  who  left  the  Philippine  Islands  before' 
the  13th  day  of  August,  1898,  and  has  remained  outside  of  the 
Islands  until  the  present  time,  and  who  would  be  excluded  but 
for  the  orders  heretofore  issued  by  the  military  governor  of  the 
Philippine  Islands  extending  the  time  within  which  Chinamen 
might  be  permitted  to  return,  shall  be  permitted  to  enter  the 
Islands. 

Sec.  2.  Chinamen  who  have  left  the  Philippine  Islands  since 
the  13th  day  of  August  1898,  or  who  may  leave  in  the  future,1 
shall  be  permitted  to  land  only  upon  the  production  of  a certi- 
ficate of  the  Collector  of  Customs  of  the  port  of  the  Philippine 
Islands  from  which  they  departed,  issued  at  the  time  of  their 
departure.  The  period  in  which  such  legal  return  can  be  made 
after  their  departure  from  the  Islands  is  hereby  limited  to  one 
and  one  half  years,  which  period  shall  be  stated  in  the  certificate 
to  be  issued  by  the  Collector  of  Customs  at  the  time  of  departure, 
and  no  extension  of  that  period  shall  be  granted  for  illness,  or 
for  any  other  cause,  by  any  authority. 

Sec.  3.  All  laws,  regulations,  and  orders  heretofore  issued 
are  hereby  repealed  insofar  as  the  same  are  inconsistent  with  the 
provisions  of  this  act. 

Sec.  4.  The  public  good  requiring  the  speedy  enactment  of 
this  bill,  the  passage  of  the  same  is  hereby  expedited  in  accord- 
ance with  section  2 of  “An  Act  prescribing  the  order  of  pro- 
cedure by  the  Commission  in  the  enactment  of  laws,”  passed 
September  26,  1900. 

Sec.  5.  This  act  shall  take  effect  on  its  passage. 

Enacted  December  13,  1901. 

Act  No.  702  of  the  Philippine  Commission. 

Sec.  1.  The  Collector  of  Customs  for  the  Philippine  Archi- 


852 


Appendix  E. 


pelago  is  hereby  authorized  and  directed  to  make  the  registration 
of  all  Chinese  laborers  in  the  Philippine  Islands  as  required  and 
prescribed  by  section  four  of  the  Act  of  Congress  approved  April 
twenty -ninth  nineteen  hundred  and  two,  entitled  “An  Act  to 
prohibit  the  coming  into  and  to  regulate  the  residence  within  the 
United  States,  its  Territories,  and  all  territory  under  itfe  juris- 
diction, and  the  District  of  Columbia  of  Chinese  and  persons  of 
Chinese  descent  ” and  to  employ  for  that  purpose  the  personnel 
of  the  Philippine  Customs  Service,  tlie  provincial  and  military 
officers  hereinafter  provided,  and  such  other  persons  as  may  be 
necessary. 

Sec.  2.  The  Insular  Collector  of  Customs  shall  make  such 
rules  and  regulations  as  may  be  necessary  for  the  efficient 
execution  of  this  Act,  prescribing  the  form  of  certificates  of 
registration  required  hereby,  and  making  such  provisions  that 
certificates  may  be  procured  in  localities  convenient  to  the  ap- 
plicants. 

Sec.  3.  Each  certificate  of  registration  shall  contain  the  name, 
age,  date,  and  place  of  birth,  registry  of  birth,  if  any,  local  resi- 
dence, occupation,  and  photograph  of  the  person  therein  de- 
scribed, and  such  other  data  in  respect  to  him  as  shall  be  pre- 
scribed by  the  Insular  Collector  of  Customs,  and  shall  be  issued 
by  the  proper  officer  upon  payment  to  him  of  a fee  of  fifty  cents, 
United  States  Currency,  said  fee  to  be  accompanied  by  a true 
photograph  of  the  applicant  in  triplicate  to  the  satisfaction  of 
such  officer. 

Sec.  4.  Any  Chinese  laborer  within  the  limits  of  the  Philip- 
pine Islands  who  shall  neglect,  fail,  or  refuse  to  obtain  within 
the  time  prescribed  by  section  4 of  the  Act  of  Congress  of  the 
United  States  referred  to  in  section  1 of  this  Act,  the  certificate 
of  registration  by  this  Act  provided  to  be  issued,  and  who  shall 
be  found  within  the  Philippine  Islands  without  such  certificate 
of  registration  after  such  time  has  elapsed,  may  be  arrested  upon 
warrant,  issued  by  the  Court  of  First  Instance  of  the  province 
or  by  the  Justice’s  Court  of  the  municipality  returnable  before 
said  Court  of  Frst  Instance,  by  any  Customs  official,  police,  con- 
stabulary, or  other  peace  officer  of  the  Philippine  Islands,  and 
brought  before  any  judge  of  a Court  of  First  Instance  in  the 
Islands,  whose  duty  it  shall  be  to  order  that  such  Chinese  laborer 


Appendix  E. 


853 


be  deported  from  the  Philippine  Islands,  either  to  China  or  the 
country  from  whence  he  came,  unless  he  shall  affirmatively 
establish  clearly  and  to  the  satisfaction  of  such  judge  by  at  least 
one  credible  witness  other  than  Chinese,  that  although  lawfully 
in  the  Philippine  Islands  at  and  ever  since  the  passage  of  tHiis 
Act  he  has  been  unable  by  reason  of  accident,  sickness,  or  other 
unavoidable  cause  to  procure  the  certificate  within  the  time 
prescribed  by  law,  in  which  case  the  court  shall  order  and  ad- 
judge that  he  procure  the  proper  certificate  within  a reasonable 
time  and  such  Chinese  laborer  shall  bear  and  pay  the  costs  of 
the  proceeding:  provided,  however,  that  any  Chinese  laborer 
failing  for  any  reason  to  secure  the  certificate  required  under 
this  law  within  two  years  from  the  date  of  its  passage  shall  be 
deported  from  the  Islands.  If  it  appears  that  such  Chinese 
laborer  had  procured  a certificate  in  due  time  but  that  the  same 
has  been  lost  or  destroyed,  he  shall  be  allowed  a reasonable  time 
to  procure  a duplicate  from  the  Insular  Collector  of  Customs  or 
from  the  officer  granting  the  original  certificate,  and  upon  the 
production  of  such  duplicate  such  Chinese  laborer  shall  be 
discharged  from  custody  upon  payment  of  costs. 

Any  Chinese  person  having  procured  a certificate  of  registra- 
tion, and  the  same  having  been  lost  or  destroyed  shall  have  a 
right  to  procure  a duplicate  thereof  under  such  regulations  as 
may  be  prescribed  by  the  Insular  Collector  of  Customs  upon  the 
payment  of  double  the  fee  exacted  for  the  original  certificate 
and  the  presentation  of  his  true  photograph  in  triplicate. 

No  Chinese  person  heretofore  convicted  in  any  court  of  the 
States  or  Territories  of  the  United  States  or  the  Philippine  Is- 
lands of  a felony  shall  be  permitted  to  register  under  the  pro- 
visions of  this  Act  without  special  authority  from  the  Civil 
Governor. 

Sec.  5.  Every  Chinese  person  having  a right  to  be  and  re- 
main in  the  Philippine  Islands  shall  obtain  the  certificate  of  re- 
gistration specified  in  section  3 of  this  Act  as  evidence  of  such 
right  and  shall  pay  the  fee  and  furnish  his  photograph  in  tripli- 
cate as  in  said  section  prescribed;  and  every  Chinese  person 
found  without  such  certificate  within  the  Philippine  Islands 
after  the  expiration  of  the  time  limited  by  law  for  registration 
shall  be  presumed,  in  the  absence  of  satisfactory  proof  to  the 


854 


Appendix  E. 


contrary,  to  be  a Chinese  laborer  and  shall  be  subject  to  deporta- 
tion as  provided  in  section  4 of  this  Act.  Every  Chinese  person 
shall,  on  demand  of  any  Customs  official,  police,  Constabulary, 
or  other  peace  officer,  exhibit  his  certificate,  and  on  his  refusal  to 
do  so  may  be  arrested  and  tried  as  provided  in  section  4 of  this 
Act. 

Sec.  6.  Any  person  who  shall  knowingly  and  falsely  alter  or 
substitute  any  name  for  the  name  written  in  any  certificate  of 
registration  or  forge  such  certificate,  or  knowingly  utter  any 
forged  or  fraudulent  certificate,  or  falsely  personate  the  person 
to  whom  said  certificate  was  originally  issued  or  who  shall  falsely 
present  any  such  certificate  shall  be  punished  by  a fine  not  to 
exceed  one  thousand  dollars  and  imprisoned  for  a term  not  to 
exceed  five  years. 

Sec.  7.  Every  Chinese  person  who  may  be  entitled  to  come 
into  the  Philippine  Islands  shall  upon  landing,  if  he  so  requests, 
be  given  by  the  Collector  of  .Customs  at  the  port,  at  which  he 
lands  a certificate  containing  his  name,  age,  photograph,  occupa- 
tion, place  of  last  residence,  the  date  on  which  he  landed,  and 
such  other  data  in  respect  to  him  as  may  be  prescribed  by  the 
Insular  Collector  of  Customs,  and  such  certificate  shall  be  issued 
upon  payment  to  the  proper  officer  of  fifty  cents  United  States 
Currency,  accompanied  by  a true  photograph  of  the  applicant  in 
triplicate,  to  the  satisfaction  of  such  officer. 

Sec.  8.  Each  certificate  issued  under  this  Act  shall  be  made 
out  in  triplicate,  and  to  each  of  the  triplicate  copies  shall  be 
attached  a true  photograph  of  the  person  to  whom  issued.  One 
of  such  triplicate  certificates  shall  be  delivered  to  the  applicant, 
one  filed  in  the  office  of  the  Registrar  of  Chinese  for  the  district 
in  which  the  application  is  made,  and  the  third  transmitted  to 
the  Insular  Collector  of  Customs  for  permanent  record  and 
file. 

Sec.  9.  The  Collector  of  Customs  for  the  Philippine  Archi- 
pelago is  hereby  authorized  to  deputize  as  registrar  or  deputy 
registrar  of  Chinese  in  each  organized  province  of  the  Civil 
Government,  any  collector  or  deputy  collector  of  customs  or 
treasurer  of  the  province,  and  the  officers  so  deputized  shall  give 
the  necessary  assistance  under  the  direction  of  the  Insular  Col- 
lector of  Customs  in  the  execution  of  this  Act. 


Appendix  E. 


855 


Sec.  10.  In  unorganized  provinces  the  Insular  Collector  of 
Customs  is  authorized  to  designate,  where  available,  any  officer  or 
qualified  employee  in  the  customs  service  for  duty  as  registrar 
or  deputy  registrar  of  Chinese,  and  in  case  none  such  is  available, 
then  by  and  with  the  consent  of  the  commanding  officer  of  the 
Division  of  the  Philippines  he  is  authorized  to  designate  an  of- 
ficer of  the  United  States  Army  to  serve  as  registrar  of  Chinese. 

Sec.  11.  Registrars  and  deputy  registrars  of  Chinese,  in  ad- 
dition to  their  compensation  as  officials  or  employees  of  the  Civil 
Government  or  officers  of  the  United  States  Army,  shall  receive 
not  to  exceed  the  sum  of  seventy-five  dollars,  United  States 
Currency,  per  month,  and  their  actual  and  necessary  traveling 
expenses,  not  to  exceed  three  dollars  United  States  Currency, 
per  day,  incurred  under  orders  of  the  Insular  Collector  and  by 
reason  of  their  being  engaged  in  the  work  prescribed  in  this  Act. 

Sec.  12.  The  words  “ laborer’ 9 or  “laborers”  wherever  used 
in  this  Act  shall  be  construed  to  mean  both  skilled  and  unskilled 
manual  laborers  including  Chinese  laundrymen  and  Chinese 
employed  in  mining,  fishing,  huckstering,  peddling,  or  taking, 
drying,  or  otherwise  preserving  shell  or  other  fish  for  home  con- 
sumption or  exportation. 

The  term  “merchant”  as  employed  in  this  Act  signifies  a 
person  engaged  in  buying  and  selling  merchandise  at  a fixed 
place  of  business  which  business  is  conducted  in  his  name,  and 
who  during  the  time  he  claims  to  be  engaged  as  a merchant  does 
not  engage  in  the  performance  of  any  manual  labor  except  such 
as  is  necessary  in  the  conduct  of  his  business  as  such  merchant. 
The  definition  of  “laborer”  and  “merchant”  set  out  in  this 
section  shall  receive  the  same  construction  as  that  given  to  it  by 
the  Federal  Courts  of  the  United  States  and  the  rulings  and 
regulations  of  the  Treasury  Department  of  the  United  States. 

Sec.  13.  (As  amended  by  Act  No.  816).  For  the  purposes 
of  this  Act  the  following  temporary  employees,  or  so  many  there- 
of as  may  be  necessary,  are  hereby  authorized  in  the  office  of  the 
Collector  of  Customs  for  the  Philippine  Archipelago:  Ten  re- 
gistration clerks  of  class  nine,  four  Chinese  translators  of  class 
D,  and  two  stenographers  and  typewriters  of  class  eight. 

Sec.  14.  (Appropriation  of  forty  thousand  dollars,  United 
States  Currency  out  of  the  moneys  in  the  Insular  treasury  to 


856 


Appendix  E. 


meet  expenses  incurred  in  connection  with  Chinese  registration.) 

Sec.  15.  It  being  impossible  to  complete  the  registration 
herein  provided  for  within  one  year  from  the  passage  of  the  Act 
of  Congress  approved  April  29,  1902,  the  time  for  such  registra- 
tion is,  pursuant  to  the  authority  granted  by  section  4 of  said 
Act,  hereby  extended  for  a period  of  six  months  to  date  from 
April  29,  1903. 

Sec.  16.  This  Act  shall  take  effect  on  its  passage. 

Enacted,  March  27,  1903. 

By  subsequent  acts  of  the  Philippine  Commission,  No.  990 
(Nov.  11,  1903),  No.  1035  (Jan.  6,  1904),  and  No.  1084  (Mar. 
10,  1904)  the  registration  period  designated  in  section  15  of  Act 
702  was  extended  to  April  29,  1904. 


GENERAL  INDEX. 


(See  separate  alphabetical  indices  under  ACT  OF  FEBRUARY 
20TH,  1907  AS  AMENDED  (pp.  859-875),  and  DEPORTA- 
TION PROCEDURE  (pp.  883-892),  infra.  For  index  to  Ap- 
pendix, see  TABLE  OF  CONTENTS). 

ABROGATION. 

Of  prior  acts  of  Congress  of  subsequent  treaty  or  prior  treaty 

by  subsequent  acts  of  Congress  44-49 

ABUSE  OF  AUTHORITY. 

By  administrative  officers  524 

Intimidation  of  aliens  held  to  constitute  540 

Sufficient  to  subject  administrative  findings  to  judicial  review  524 

ACQUITTAL  OF  CRIMINAL  CHARGE. 

Not  res  ad  judicata  of  same  facts  when  charged  in  deportation 

proceedings  463 

ACT  OF  MAY  31,  1870  55 

General  purpose  of  \ 55 

ACT  OF  MARCH  3,  1875  61 

ACT  OF  MAY  6,  1882. 

Enacted  for  the  purpose  of  executing  the  treaty  of  Nov.  17, 

1880  28 

ACT  OF  AUGUST  3,  1882  62 

Aliens  excludable  thereunder  63 

Powers  of  Federal  and  State  authorities  incapable  of  mutual 

delegation  thereunder  63 

Head  tax  imposed  under  62 

Head  tax  requirement  of,  not  violative  of  the  “native  citizen 

or  subject”  clause  40 

Held  constitutional  64 

Authority  and  duties  of  Secretary  of  the  Treasury  under  ....  63 

Decision  of  State  Board  not  subject  to  reversal  by  Collector  of 

Customs  under  63 

Duty  of  State  Commission  of  Immigation  to  report  their  find- 
ings to  the  Collector  of  Customs  under  63 

Powers  of  State  Commissioners  under 63 

ACT  OF  FEB.  26,  1885,  and  amendments  64 

Assisting  or  encouraging  the  importation  or  migration  of  con- 
tract laborers  prohibited  66 

Contract  laborers,  classification  of  67 

Elements  requisite  to  give  a right  of  action  for  the  unlawful 

importation  of  aliens  69 

Held  constitutional  68 

Main  object  66 


858  General  Index. 

(GENERAL  INDEX,  Cont.) 

ACT  OF  FEB.  26,  1885,  Cont. 

Not  applicable  to  ministers  of  the  Gospel  66 

Penalties  67 

ACT  OF  FEB.  23,  1887  64 

Return  of  aliens  under  67 

ACT  OF  SEPT.  13,  1888  89 

Chinese  persons  to  whom  applicable  89, 90 

Certificates  of  return  ' 90 

Ports  of  entry  for  Chinese,  designation  of  90 

Landing  of  Chinese  prohibited  90 

Landing  of  Chinese  penalized  90 

Certificates,  falsification  of,  penalized  91 

Removal  of  Chinese  unlawfully  here  91 

Sections  in  force  ' 93 

ACT  OF  OCT.  1,  1888  91 

Held  constitutional  ‘.....92,356 

Repealed  by  the  treaty  with  China  of  Dec.  7,  1894  

ACT  OF  OCT.  19,  1888  67 

Return  of  aliens  under  67 

ACT  OF  MARCH  3,  1891  70 

Administrative  decisions  refusing  aliens  right  to  land  made  final  73 

Classes  excluded  70 

Contract  labor  provisions  71 

Co-operation  of  State  and  Federal  authorities  terminated  73 

Held  to  apply  to  immigrants  only  70,429 

Inapplicable  to  domiciled  aliens  70 

Judicial  and  administrative  jurisdiction  not  concurrent  as  to 

subjects  of  deportation  proceedings 76 

Penal  provisions  75 

Landing  of  aliens  prohibited  75 

Return  of  aliens  unlawfully  in  the  United  States 74 

ACT  OF  MAY,  5,  1892  93 

Primary  object  of  94 

Continued  exclusion  of  Chinese  laborers  under  94 

Registration  of  Chinese  laborers  94 

Purpose  and  effect  of  the  registration  provisions  94 

ACT  OF  MAR.  3,  1893  77 

Boards  of  inquiry  and  the  right  of  administrative  appeal 77 

General  purpose  of  the  act  77 

Held  not  to  abrogate  state  quarantine  systems 77 

Immigrant  lists  77 

ACT  OF  NOV.  3,  1893  ’ 96 

Registration  provisions,  on  whom  operative  357 

Section  2,  purpose  of,  359 

ACT  OF  AUG.  18,  1894  98 

Depriving  Chinese  of  treaty  rights  48 

Authority  of  Congress  to  pass  48 


General  Index. 


859 


(GENERAL  INDEX,  Cont.) 

ACT  OP  AUG.  18,  1894,  Cont. 

Does  not  authorize  arbitrary  exclusion  491 

Effect  of  on  commercial  domicile  of  Chinese  person 48 

Effect  of  on  right  of  judicial  review 492 

Final  determination  of  right  of  aliens  to  enter  vested  in  ad- 
ministrative officers  98,489 

Operative  even  where  claim  is  American  citizenship 99 

ACT  OP  JUNE  6,  1900. 

Commissioner  General  of  Immigration  charged  with  enforcement 

of  Immigration  Law  113 

ACT  OF  MAR.  3,  1901  99 

ACT  OF  APRIL  29,  1902  100 

Chinese  exclusion  made  applicable  to  Insular  Territory  100 

ACT  OF  FEB.  14,  1903  101 

Transfer  of  administration  of  Chinese  Exclusion  Laws  to  the 

Department  of  Commerce  and  Labor  101 

ACT  OF  MAR.  3,  1903  78 

Contract  labor  provisions  '. 80 

Unlawful  landing  of  aliens  81 

Diseased  aliens  excluded  81 

Obligation  of  transporter  to  prevent  unlawful  landing  of  aliens  81 

Obligation  of  transporter  to  detain  aliens  for  deportation  ....  82 

Held  not  to  exclude  lawfully  domiciled  aliens  447-448 

Increase  of  head  tax  78 

Aliens  excluded  79 

Exclusion  of  anarchists  thereunder  held  constitutional  79 

Aliens  held  not  subject  to  the  operation  of  this  act 78 

Prostitutes  and  their  importation  79 

Increase  of  probationary  period  for  public  charges 83 

Increase  of  probationary  period  for  other  aliens  83 

Boards  of  Special  Inquiry — effect  of  their  decisions 83 

Retrospective  effect  of  the  act  84 

Section  9,  held  constitutional  142 

ACT  OF  APRIL  27,  1904. 

Extension  and  continuation  of  existing  Chinese  Exclusion  Laws  101 

ACT  OF  FEB.  6,  1905. 

Philippine  government  authorized  to  administer  Immigration 

laws  116 

ACT  OF  FEB.  20,  1907,  AS  AMENDED  BY  THE  ACT  OF 
MAR.  26,  1910. 

General  purpose  of  149 

Aliens  subject  to  the  operation  of  the  act 150 

Not  restricted  in  its  operations  to  immigrants 137 

Section  3,  of,  held  unconstitutional  207 


860  General  Index. 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

Section  3,  as  amended  by  the  Act  of  March  26,  1910,  held  con- 
stitutional   208 

Section  7,  not  contract  labor  provision  227 

Section  8,  purpose  , , 229 

Section  9,  purpose  of  distinguished  from  that  of  section  8 230 

Section  19,  purpose  of  distinguished  from  that  of  sections  8, 

9 and  18  256 

ACT  OF  MARCH  4,  1909. 

Abolishing  Immigrant  Fund  298 

ACCOMPANYING  ALIEN. 

When  subject  to  exclusion  243 

Obligation  on  transporter  to  return 243 

ACCREDITED  officials  of  foreign  governments  not  subject  to  the 

operation  of  the  Immigration  Act 318 

ADMISSION. 

Meaning  of  the  term  for  the  purpose  of  the  Immigration  Act  . . 171 

AGENTS,  IMMIGRANT,  OF  THE  STATES  AND  TERRITORIES. 

Right  of  to  have  access  to  aliens  admitted  to  the  United  States  317 
Subject  to  all  regulations  in  force  at  immigrant  stations 317 

AGREEMENT  IN  CONTRACT  LABOR  PROVISIONS. 

What  constitutes  224 

AIDING  or  assisting  the  entrance  of  anarchists. 

See  Anarchists. 

ALIENS. 

Excluded  from  admission  to  the  United  States. 

Anarchists  180 

Convicts  or  those  admitting  the  commission  of  offenses 176 

Feeble-minded  persons  173 

Persons  afflicted  with  loathsome,  dangerous  or  contagious  dis- 
ease . ^ 174 

Persons  afflicted  with  mental  or  physical  defects,  of  a nature 

wfflich  might  affect  the  ability  of  an  alien  to  earn  a living  174 
Women  or  girls  coming  to  the  United  States  for  the  purposes 

of  prostitution  183 

Persons  supported  by  the  proceeds  of  prostitution  183 

Persons  who  procure  or  attempt  to  bring  in  women  or  girls  for 

the  purpose  of  prostitution  183 

Persons  who  procure  or  attempt  to  bring  in  prostitutes 183 

Persons  likely  to  become  public  charges  from  whatever  cause  . . 175 

Persons  excludable  as  likely  to  become  public  charges  whether 

from  poverty  or  criminal  tendencies  177 

Polygamists  or  persons  admitting  their  belief  in  the  practice 

of  polygamy  182 

Prostitutes  183 

Paupers  175 


General  Index. 


861 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

ALIENS,  Cont. 

Women  or  girls  coming  to  the  United  States  for  immoral  pur- 
poses   183 

Contract  laborers  t 186 

Persons  who  procure  or  attempt  to  bring  in  women  or  girls  for 

an  immoral  purpose  183 

Persons  who  have  had  two  or  more  attacks  of  insanity  before  ar- 
rival at  United  States  port  173 

Persons  who  have  been  insane  within  five  years  previous  to  ar- 
rival in  the  United  States  173 

Beggars  175 

Epileptics  173 

ALIENS. 

Admissible  to  the  United  States. 

Actors  186 

Artists 186 

Domestic  servants  186 

Lecturers  186 

Ministers  of  any  religious  denomination  186 

Professors  for  colleges  or  seminaries  186 

Singers  186 

ANARCHISTS. 

Prohibited  from  entry  into  the  United  States  311 

Penalty  imposed  upon  those  aiding  in  the  unlawful  entry  of, 

into  the  United  States  312 

ASSISTED  ALIENS. 

Excludable  from  admission  191 

Burden  of  proof  on,  to  show  admissibility  191 

BOARD  OF  SPECIAL  INQUIRY  289 

Proceedings  of,  not  an  appeal  from  decision  of  Inspector  refus- 
ing a landing  287 

Appointment  of  289 

How  constituted  289 

Authority  of  to  pass  upon  aliens  right  to  land  289 

Conduct  of  hearings  before  289 

Majority  decision  binding  289 

Right  of  appeal  from  decision  of,  by  dissenting  member 289 

Right  of  appeal  from  decision  of,  by  alien 289 

Appeal  from  decision  of,  as  affecting  disposal  of  alien  pend- 
ing appeal  289 

Obligation  to  determine  all  cases  promptly 290 

Authority  of  to  determine  aliens  right  to  land  290 

Nature  of  hearings  before  291 

Alien  has  no  right  to  be  represented  by  counsel  before 291 

When  right  of  appeal  exists  from  decisions  of,  according  to  de- 
partmental interpretation  238 

Not  a court  293 


862  General  Index. 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

BOARD  OF  SPECIAL  INQUIRY,  Cont. 

Appeals  from. 

Not  available  to  diseased  aliens  when  decision  is  based  on  medi- 
cal certificate  236 

Time  for  filing  of  294 

Forwarding  records  of  %. 294 

Decision  on,  rendered  solely  on  evidence  adduced  before  the 

board  289 

Excluding  decision  final  unless  reversed  on  appeal 290 

When  no  appeal  lies  from  decision  of 290 

Departmental  instructions  for,  as  embodied  in  ‘ ‘ Rule  15  ’ ’ ....  290 

Members  of  shall  subscribe  to  oaths  of  office 290 

Prvision  of  “Rule  17 ’ ’ regarding 294 

Alien  must  be  informed  of  his  right  to 294 

How  filed  294 

Finality  of  decision  of. 

Favorable  decisions  of  not  final 293 

Do  not  constitute  res  ad  judicata  293 

Decision  of  not  final  unless  based  exclusively  on  medical  certifi- 
cate   236 

Decision  of  not  final  on  questions  of  whether  the  act  applies  to 

a certain  alien  237 

Cases  in  which  decision  final 236 

BOND. 

What  aliens  may  be  admitted  under  295 

Method  of  bringing  suit  on  295 

Decision  of  Secretary  of  Commerce  and  Labor  refusing  to  admit 

alien  under  not  subject  to  judicial  review  295 

When  alien  may  be  admitted  under  although  he  has  no  right  of 
appeal  from  the  decision  of  the  Special  Board  of  In- 
quiry   295 

Amount  of  in  case  of  aliens  admitted  under 296 

Aliens  excludable  because  likely  to  become  public  charges,  may 

be  admitted  on  295 

What  it  must  contain  for  the  admission  of  aliens  likely  to  be- 
come public  charges  295 

BRINGING  diseased  aliens  to  the  United  States  prohibited 230 

Not  a misdemeanor  230 

BURDEN  OF  PROOF. 

On  Government  in  suits  to  recover  penalty  for  violation  of  con- 
tract labor  laws  220 

CANADIAN  Agreement  153 

CANAL  ZONE. 

Not  included  in  term  United  States,  as  used  in  this  act 306 

Aliens  seeking  to  enter  the  United  States  from,  subject  to  the 

operation  of  the  act  306 


General  Index.  863 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

CANAL  ZONE,  Cont. 

Chinese  not  prohibited  from  entering  under  the  Immigration 

Act  306 

CERTIFICATE  of  medical  examiner  as  to  existence  of  disease  in 

aliens  embarking  for  the  United  States  232 

CHALLENGE. 

See  Immigration  Officer. 


CHARGE  for  the  return  of  rejected  aliens  by  transporter  made  a mis- 


demeanor   255 

How  penalized 255 

Defined  257 

CHILDREN  under  sixteen  excludable  from  admission  191 

CHINESE  Exclusion  Acts,  not  altered  by  the  present  act 320 

CHINESE  persons  found  to  be  unlawfully  in  the  United  States, 
subject  to  deportation  on  warrant  of  Secretary  of  Com- 
merce and  Labor  274,277 

CIRCUIT  AND  DISTRICT  COURTS. 

Provision  vesting  them  with  concurrent  jurisdiction  of  causes 
arising  under  this  act  does  not  affect  finality  of  adminis- 
trative decisions  rendered  thereunder  297 

CLEARANCE  PAPERS. 

Conditions  under  which,  granted  to  vessels  bringing  diseased 

aliens  to  the  United  States  230 

Provisions  regarding  the  refusal  thereof  230 

Refusal  of  for  failure  to  deliver  manifests  244 

CLEARANCE  OF  VESSELS. 

Provisions  regarding  the  granting  of,  bringing  diseased  aliens 

to  the  United  States  230 

Refusal  of,  until  payment  of  fine  imposed  for  violation  of 

Section  19  255 

COMMISSIONER  GENERAL  OF  IMMIGRATION. 

Duty  of  to  prescribe  rules  for  the  entry  and  inspection  of  aliens 

entering  along  the  border  153 

Powers  and  duties  of  279 

Power  of,  to  enter  into  contracts  with  the  transportation  lines. . 300 

Power  of,  to  prescribe  rules  for  inspection  and  entry  of  aliens 

along  the  borders  300 

Authority  of,  to  arrange  for  the  payment  of  head  tax 152 

Authority  of,  to  establish  a Division  of  Information 316 

COMMISSIONERS  OF  IMMIGRATION. 

Duties  of  284 

For  Canada. 

Disposition  of  moneys  collected  by  302 

Bond  required  of  302 

COMPROMISE,  of  suits  for  a violation  of  the  act. 

Provisions  regarding  296 

CONCUBINES  are  persons  brought  in  for  immoral  purposes  183 


864 


General  Index. 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

CONGRESS,  power  of. 

To  authorize  Secretary  of  Commerce  and  Labor  to  impose  ad- 
ministrative fine  for  bringing  diseased  aliens  to  the 

United  States  233 

To  make  the  return  of  an  alien  once  deported  a criminal  offence 

punishable  with  imprisonment  212 

To  punish  the  importation  of  contract  labor  affirmed  by  Su- 
preme Court  216 

To  provide  for  payment  of  head  tax  153 

To  deport  aliens  for  acts  of  prostitution  committed  at  any  time 

after  entry  into  the  United  States  upheld 211 

To  prosecute  violations  of  contract  labor  provisions  civilly  or 

criminally  216,  219,  220 

CONTRACT  LABORER. 

What  constitutes  190 

Importation  of. 

See  Importation. 

Requisites  of  complaint  for  222 

Accountant  not  a 188 

Coachman  employed  as  a domestic  servant,  not  a .'. 188 

When  not  excludable  188 

CONTRACT — nature  of,  discussed 189 

Of  a formal  nature  between  foreign  laborer  and  employer  not 
necessary  in  order  to  constitute  former’s  coming  to  the 
United  States  a violation  of  contract  labor  provisions  . . 226 

To  perform  labor  in  the  United  States,  elements  of 190 

CONSPIRACY  to  import  contract  labor  subjects  parties  to  penalty  im- 
posed by  Par.  5440  of  Revised  Statutes 221 

COST. 

Of  deportation  of  aliens  becoming  public  charges, 

By  whom  borne  261 

Of  guardian  to  accompany  disabled  alien  found  unlawfully  in 
the  United  States, 

How  defrayed  265 

Of  hospital  treatment, 

By  whom  born  259 

Of  maintenance,  See  Maintenance. 

Of  maintenance  of  aliens  whose  deportation  is  suspended  for 
the  purpose  of  obtaining  testimony, 

By  whom  borne  261 

COUNSEL. 

Disbarment  of  292 

Change  of,  by  aliens  pending  proceedings  , 292 

Employment  of,  by  aliens  291 

Provisions  of  Rule  31,  regarding  the  employment  of,  by  aliens  . . 291 

Regulations  regarding  fees  of  292 

Right  of  aliens  to  be  represented  by,  See  Board  op  Special  In- 
quiry. 


General  Index. 


865 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

COUNSEL,  Cont. 

Rules  regarding  admission  of  to  practice  before  the  Department  291 

DEPARTMENTAL  RULES. 

Force  and  effect  of  280 

DIPLOMATS. 

See  Accredited  Officials. 

DEPORTATION  OF  ALIENS.  Destination  of 308 

When  alien  cannot  be  returned  to  contiguous  territory  except  by 

violating  the  law  thereof  308 

See  Deportation  Procedure. 

Rejected  at  Canadian  Seaports. 

Rules  governing  304 

Suspension  of,  for  the  purpose  of  taking  testimony. 

Departmental  rules  regarding 258 

DETENTION  OF  ALIENS  ON  BOARD. 

Obligation  of  master  of  vessel  with  regard  to. 

See  Master  of  Vessel. 

DISEASE. 


Decision  of  Board  of  Special  Inquiry  final  with  regard  to  ex- 
istence of  238 

DISEASED  ALIENS. 

Bringing  of  to  the  United  States. 

See  Bringing. 

DISEASED  STOWAWAYS. 

Bringing  of  to  the  United  States. 

See  Vessels. 

DIVISION  OF  INFORMATION. 


Purpose  of  317 

ENTRY,  UNLAWFUL. 

Merely  crossing  the  border  does  not  constitute 308 

ESCAPE  OF  ALIEN  SEAMEN. 

See  Landing. 

EVASION  of  the  Immigration  Law  by  unlawful  entry 308 

EVIDENCE. 


Power  of  Immigration  Officers  to  take  and  consider. 
See  Immigration  Officers. 


Of  offence  of  importing  and  holding  aliens  for  prostitution 206 

EXPENSE  OF  RETURN  OF  REJECTED  ALIENS. 

By  whom  borne 254 

EXPERT  chemist,  not  a contract  laborer  187 

EXPOSITIONS  OR  FAIRS. 

Skilled  employees  of  exhibitors  at,  not  laborers 187 

FALSE  EVIDENCE. 

See  Perjury. 

FALSE  Statements,  made  to  inspecting  officers. 

See  Perjury. 


866  General  Index. 

t . . » 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

FALSE  Swearing. 

See  Perjury. 

FARMHAND. 

Excludable  as  a contract  laborer 189 

FAVORABLE  decision  admitting  alien,  not  res  judicata 286,293 

FINE. 

For  bringing  diseased  aliens  to  the  United  States 230 

Provisions  for  hearing  granted  the  master  regarding  imposition  of  234 

Provisions  for  security  of  payment  of  234 

Service  of  notice  to  master  regarding  the  imposition  of  234 

Submission  of  evidence  and  report  on  hearing  had  with  regard  to 

imposition  of  234 

Time  within  which  master  may  submit  evidence  pending  the  im- 
position of  234 

Disposition  of  security  deposited  by  master  for  the  payment  of . . 325 

Fines  for  failure  to  deliver  manifests. 

See  Manifests. 

Imposition  of  on  transporter  for  violation  of  Section  19 255 

Provision  for  the  imposition  of  based  on  finding  of  medical  ex- 
aminer that  disease  existed  in  alien  embarking  for  the 

States  held  constitutional 233 

GUARDIAN,  en  voyage  265 

Cost  of,  See  Cost. 

For  disabled  aliens  found  to  be  unlawfully  in  the  United  States, 

Departmental  rule  concerning  266 

To  accompany  disabled  aliens  found  to  be  unlawfully  in  the 

United  States  265 

See  Accompanying  Alien. 

HEAD  TAX. 

A lien  155 

Arrangement  for  collection  of  under  Canadian  agreement 167 

By  whom  paid 154 

To  whom  paid  *. • I 154 

Disposition  of  sums  collected  by  way  of 155 

Provisions,  general  purpose  and  effect  of  167 

Levy  and  collection  of  152 

On  whom  it  may  be  levied ’ 155 

Not  collectible  on  account  of 

, Aliens  who  shall  enter  the  United  States  being  residents  of 

Canada,  Newfoundland,  Cuba  or  Mexico 155 

Admissible  residents  in  a possession  of  the  United  States 157 

Aliens  in  transit  through  the  United  States 158 

Aliens  en  route  to  some  other  country  and  temporarily  in  ports 

of  the  United  States  160 

Aliens  who  do  not  enter  the  United  States  because  excluded  . . . 161 

Aliens  who  have  been  lawfully  admitted  to  the  United  States 


General  Index.  ' 867 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

HEAD  TAX,  Cont. 

and  who  shall  later  go  in  transit  from  one  part  thereof  to 

another  through  foreign  contiguous  territory 162 

Aliens  arriving  in  Guam,  Porto  Rico  and  Hawaii 163 

Tourists 164 

Seamen  landing  in  pursuit  of  their  calling 164 

Deserting  seamen  in  absence  of  negligence  on  the  part  of  the 

master  of  the  vessel 165 

Payment  of. 

Arrangement  of,  on  behalf  of  aliens  brought  to  Canadian  ports  163 
To  United  States  Commissioner  of  Immigration  for  Canada  ...  301 

Certificate  for,  to  be  paid  on  account  of  aliens  seeking  to  enter 

from  Canada  or  Newfoundland 301 

Refund  of 158 

To  aliens  applying  for  transit  through  the  United  States  frum 

Canada  

Rule  governing  305 

Rule  regarding  collection  of  at  Mexican  border 306 

Whether  collectible  on  account  of  stowaways 166 

HOLDING  FOR  PURPOSES  OF  PROSTITUTION. 

What  constitutes 209,  213 

Holding  or  harboring  an  alien  must  be  in  pursuance  of  unlaw- 
ful importation  209 

HOSPITAL  TREATMENT— Rule  19  concerning 258 

Admission  for,  not  a landing 260 

Cost  of,  See  Cost. 

Landing  of  aliens  for 255,  259,  260 

When  granted  to  aliens  suffering  from  tuberculosis  or  other  loath- 
some or  dangerous  disease 258 

HUSBAND. 

Testimony  of,  admissible  against  wife  in  criminal  prosecutions 

under  Section  3 212 

IDIOTS,  imbeciles  and  insane  persons  excluded  from  admission. 173 

IMMIGRANT  stations  may  be  entered  by  State  officers  for  the  pur- 
pose of  preserving  the  peace 299 

IMMIGRATION  COMMISSION. 

Object  of  314 

Creation  of 314 

Powers  of  315 

IMMIGRATION  FUND. 

Abolishment  of  155,  298 

IMMIGRATION  INSPECTORS. 

See  Inspectors. 

IMMIGRATION  OFFICERS. 

Favorable  decision  of  regarding  right  of  alien  to  enter  subject  to 

challenge 285 

Power  to  administer  oaths 285 


868 


General  Index. 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

IMMIGRATION  OFFICERS,  Cont. 

Power  to  take  and  consider  evidence  of  alien ’s  right  to  enter  the 

United  States 285 

IMPORTATION  OF  ALIENS. 

For  immoral  purposes  prohibited 203 

Aliens  whose  importation  is  prohibited 210 

Situs  of  the  offence  .,. .......  210 

For  the  purposes  of  prostitution. 

Sufficiency  of  indictment  for  205 

Of  Chinese  prostitutes. 

Prohibited  by  Section  3 as  amended 213 

IMPORTATION  OF  CONTRACT  LABOR. 

A misdemeanor  214,219 

Action  to  recover  penalty  for  may  be  a civil  action  of  debt  ....  217 

By  promise  of  employment  through  advertisements 215 

By  advertisement,  States  or  territories  excepted  from  penal  pro- 
visions regarding  215 

Method  of  bringing  suit  for  recovery  of  penalty  for. 

Civil 217 

Criminal  219 

Penalty  for  may  be  recovered  by  indictment  or  information  in 

criminal  action 219 

Penalty  imposed  for  215 

Elements  of  224,  225,  227 

INCEST  as  ground  of  exclusion 182 

INDICTMENT  for  offence  of  importing  aliens  for  purposes  of  pros- 
titution. 

See  Importation  of  Aliens. 

INSPECTION  OF  ALIENS  at  Canadian  and  Mexican  ports  of  entry. . 300 

Rules  regarding  300 

INSPECTORS  AND  OTHER  IMMIGRATION  OFFICIALS. 

Appointment  of 284 

Compensation  of  ,t 284 

When  disqualified  to  pass  as  members  of  Board  of  Special  Inquiry 

on  the  right  of  an  alien  to  enter 286 

JAPANESE  AND  KOREAN  LABORERS. 

Provisions  for  the  exclusion  of 201 

Departmental  rules  regarding  their  exclusion  and  admission  ....  201 

JURY. 

Withdrawal  of  case  from,  See  Penalty. 

July  Trial,  See  Penalty. 

LACE  MAKER. 

Excludable  as  a contract  laborer  189 

LANDING. 

Admission  for  hospital  treatment  not 260 

For  examination. 


General  Index. 


869 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

LANDING,  Cont. 

Does  not  constitute  1 1 dwelling  ’ ’ in  the  United  States 250 

Aliens  acquire  no  rights  thereby 250 

For  purposes  of  inspection  not  a landing  in  law 172 

Unlawful,  of  aliens. 

Distinguished  from  bringing  them  to  the  ports  of  the  United 

States  229 

Escape  of  alien  seamen  from  vessel  does  not  constitute 229 

In  United  States  prohibited  and  penalized  by  Section  8 228 

Placing  sick  seamen  in  hospital  does  not  constitute 229 

Removal  of  aliens  for  examination  does  not  constitute 250 

See  Temporary  Removal. 

LEARNED  PROFESSION. 

Members  of  any  recognized,  not  contract  laborers 186 

LINE  INSPECTION  286 

LISTS. 

See  Manifests. 

LOCAL  JURISDICTION. 

Aliens  subject  to,  for  purpose  of  civil  and  criminal  process  irre- 
spective of  admission 299 

MAINTENANCE  of  aliens  unlawfully  brought  to  the  United  States. 

Cost  of. 

By  whom  borne 255 

Refusal  to  pay  cost  of  a misdemeanor 255 

MANIFESTS. 

Of  incoming  aliens. 

Duty  of  master  of  vessel  to  deliver 243 

Requisites  of  243 

Of  outgoing  aliens. 

Requisites  of  244 

Duty  of  master  of  vessel  to  deliver 244 

Of  aliens  arriving  from  the  Philippines,  Guam,  Porto  Rico  and 
Hawaii. 

Duty  of  master  to  deliver  at  port  of  arrival 245 

Delivery  of  incorrect  manifests  not  penalized  by  the  act 249 

Departmental  rules  regarding  the  imposition  of  fines  for  failure 

to  deliver 249 

Required  of  vessels  bringing  aliens  bound  for  the  United  States 

to  Canadian  ports 302 

Signature  of,  by  a ship  7s  surgeon  required 247 

Failure  of  master  of  vessel  to  deliver,  penalized 247 

Failure  to  prepare  and  deliver  as  required  by  law. 

What  constitutes  245 

When  valid,  when  no  surgeon  accompanies  the  vessel 247 

Verification  of,  required  of  master  of  vessel 246 

MARRIAGE. 

Incestuous,  as  ground  of  exclusion 182 


870  General  Index.  ; 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

MASTER  OF  VESSEL. 

Duty  to  prevent  the  landing  of  aliens  subject  to  the  penal  pro- 
visions of  the  act  254 

Liability  of  to  head  tax  on  account  of  deserting  seamen 165 

Duty  to  detain  aliens,  test  of 252,  253 

Not  absolute  insurer  with  regard  to  safe  keeping  of  aliens  within 

his  control 251 

Not  liable  for  escape  of  alien  while  latter  in  control  of  immigra- 
tion officers 253 

Obligation  of. 

To  detain  rejected  alien  on  board  does  not  make  him  liable  for 

To  receive  back  on  board  rejected  aliens ✓ 255 

To  return  accompanying  aliens. 

See  Accompanying  Aliens. 

To  return  aliens  ordered  deported  on  the  ground  of  being  unlaw- 
fully in  the  United  States  265 

To  return  rejected  alien  does  not  extend  to  making  him  an  abso- 
lute insurer  of  such  return 257 

Refusal  by  to  return  alien  found  unlawfully  in  the  United  States. 

How  penalized  265 

Right  of,  to  put  aliens  in  irons  to  ensure  against  their  escape  . 252 

MEDICAL  CERTIFICATE. 

Whether  board’s  decision  is  based  on  a question  of  fact 239 

Departmental  ruling  concerning,  issuance  of  in  case  of  diseased 

aliens  brought  to  the  United  States 232 

MEDICAL  EXAMINATION  of  aliens  coming  to  the  United  States 

from  Canada  302 

MEDICAL  OFFICERS. 

Qualifications  of 253 

MEXICAN  BORDER. 

Rules  regarding  inspection  on 305 

Ports  of  entry 305 

Procedure  • 305 

MIGRATION  OF  ALIENS. 

Necessary  element  to  constitute  a contract  laborer 187 

Necessary  element  of  encouragement  of  immigration  by  transpor- 
tation companies 228 

Necessary  element  in  the  importation  of  contract  labor 225 

MILLINER  excludable  as  a contract  laborer 189 

MINOR  CHILD  of  naturalized  alien  who  has  never  resided  in  the 
United  States. 

Subject  to  the  operation  of  the  immigration  law 310 

Excluding  decision  of  Board  of  Special  Inquiry  final  with  re- 
gard to 310 

MORAL  TURPITUDE. 

Persons  convicted  of,  or  admitting  the  commission  of  an  offence 

involving,  excluded  from  admission  176 


General  Index. 


871 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

MORAL  TURPITUDE,  Cont. 

Whether  certain  offences  involve  178 

What  constitutes  179 

Admission  of  an  offence  involving 177 

When  available  as  a cause  of  deportation  under  the  act 179 

Conviction  of  an  offence  involving,  must  occur  prior  to  admis- 
sion into  this  country 179 

NAVIGATION  LAW. 

Section  42  relating  to  amendment  of 318 

NEGLIGENT  FAILURE  of  transporters  to  prevent  aliens  landing. 

Aliens  landing  through,  unlawfully  in  the  United  States  and  sub- 
ject to  deportation  254 

See  Master  of  Vessel. 

NEW  INDUSTRY. 

What  held  not  to  constitute 193 

OATHS. 

Power  of  immigration  officers  to  administer. 

See  Immigration  Officers. 

PENALTY  for  importation  of  contract  labor 215 

Action  for  recovery  of. 

May  be  either  civil  or  criminal 217,219 

So  far  criminal  that  defendant  cannot  be  compelled  to  testify 

against  himself  220 

Civil  action  for  recovery  of  not  sole  means  of  enforcing  it  ....  219 

Compensation  of  informers  in  actions  brought  for  218 

Defendant  entitled  to  a jury  in  action  for  recovery  of 221 

May  be  recovered  by  action  in  debt 217 

Suit  for  may  be  brought  by  a private  person  for  his  own  benefit  218 

When  action  for  brought  by  the  District  Attorney 219 

Wben  case  may  be  withdrawn  from  jury  in  action  for  recovery  of  221 
See  Importation,  Conspiracy. 

PERJURY. 

As  an  offence  involving  moral  turpitude  287 

Elements  as  affecting  right  of  alien  to  enter 287 

In  deportation  proceedings. 

How  penalized  285 

What  shall  be  deemed  285 

PORTS  OF  ENTRY. 

On  the  Canadian  border  300 

Canadian  seaports  301 

At  Mexican  border  305 

PRESIDENT  OF  THE  UNITED  STATES,  authority  of. 

To  call  International  Conference  on  Immigration 315 

To  enter  into  International  Agreements  on  Immigration 315 

Proclamation  of,  of  Mar.  14,  1907. 

Regarding  the  exclusion  of  Japanese  or  Korean  laborers 201 


872  General  Index. 

(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

PRIMARY  INSPECTION. 

See  Line  Inspection. 

PRIVILEGES,  exclusive. 

Connected  with  immigrant  stations  298 

Provisions  regarding  298 

PRIVATE  PERSON. 

Empowered  to  bring  suit  for  violation  of  contract  labor  laws  . . 218 

PROMISE  OP  EMPLOYMENT  prohibited  by  contract  labor  pro- 
visions   214,223 

PROSECUTIONS  OR  PROCEEDINGS  under  earlier  acts. 

Not  affected  by  the  present  act  296 

As  to  the  Government’s  right  to  deport  alien  prostitutes 297 

As  to  prostitutes  residing  in  the  United  States 297 

As  to  contract  laborers  entering  lawfully  under  prior  act 297 

PROSTITUTES. 

Chinese. 

Importation  of,  See  Importation. 


Subject  to  the  operation  of  the  Immigration  Act 184 

Coming  to  the  United  States  prior  to  the  adoption  of  the  act  sub- 
ject to  the  operation  thereof 184 

Domiciled  in  the  United  States  and  returning  thereto  generally 

held  subject  to  deportation  185 

Effect  of  prior  domicile  in  the  United  States  on  Government’s 

right  to  deport  211 

Held  not  subject  to  deportation  under  the  present  if  domi- 
ciled here  except  for  acts  of  prostitution  committed  after 

March  26,  1910  185 

Period  within  which  they  are  subject  to  deportation  under  the 

present  law  211 

Sham  marriage  by,  to  American  citizen  does  not  relieve  her  from 

deportation  185 

PROSTITUTION. 

Holding  for  purposes  of  213 

Attempt  at  defined  214 

Importation  of  aliens  for  purposes  of,  See  Importation. 

PUBLIC  CHARGE. 

Arrest  and  deportation  on  warrant. 

Of  aliens  who  become  after  entry 262 


Cost  of  deportation  of  aliens  who  become  after  entry. 

See  Cost. 

Departmental  rules  governing  procedure  to  be  adopted  regarding 

deportation  of  aliens  who  after  entry  shall  have  become  262 
Deportation  of  aliens  who  have  become  while  lawfully  here. 


Under  provisions  of  Rule  24  283 

Subject  to  deportation  within  three  years  after  entry 261 

“Likely  to  become.” 

What  the  term  includes  263 


General  Index. 


873 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

PUBLIC  CHARGE,  Cont. 

Not  exempt  from  exclusion  by  “ native  citizen  or  subject”  clause  175 
Release  under  bond  pending  deportation  proceedings  of  aliens 

who  after  entry  shall  have  become 261,  264 

REFUSAL  TO  RECEIVE  BACK  ON  BOARD  rejected  aliens  a misde- 
meanor   255 

RETURN. 

Of  deported  aliens  212 

Offence  must  be  judicially  established 212 

Of  rejected  aliens,  obligation  of  master  with  regard  to. 

See  Master  op  Vessel. 

REVISED  STATUTES  of  the  United  States,  Para.  5440.  . . i 

See  Conspiracy. 

RULES  AND  REGULATIONS  280 

Power  of  Commissioner  General  to  provide 279 

Held  valid  281 

When  held  invalid  282 

Rule  17  238 

Designating  classes  of  aliens  in  determining  whose  admissi- 
bility Boards  of  Special  Inquiry  must  base  their  decision 

on  the  medical  certificate 242 

Doubtful  validity  of  242 

Rule  24. 

Concerning  deportation  with  his  own  consent  on  an  alien  public 

charge  lawfully  in  the  United  States  283 

SEAMEN, 

Generally  not  subject  to  the  operation  of  the  act 193 

Departmental  rules  concerning  admission  of 193 

Not  laborers  188 

Deserting  . . . . 195 

Engaged  in  the  coastwise  trade 196 

SEAPORTS. 

Aliens  who  enter  the  United  States  at  places  other  than,  unlaw- 
fully in  the  United  States 307 

SECRETARY  OF  COMMERCE  AND  LABOR. 

Discretionary  power  to  admit  aliens  under  bond.  - 

See  Bond. 

Empowered  to  deport  aliens  unlawfully  in  the  United  States  . . . 265 

Sole  judge  of  existence  of  disease  in  aliens  embarking  for  the 

United  States  230 

SECURITY. 

Taken  for  charge  for  return  of  rejected  aliens  defined 257 

Taking  of,  by  transporter  to  secure  the  costs  of  the  return  of 

the  rejected  alien  made  a misdemeanor 255 

How  penalized 255 

SETTLEMENT. 

See  Compromise. 


874  General  Index. 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

SKILLED  LABOR. 

When  it  may  be  lawfully  imported 192 

STATES  AND  TERRITORIES. 

As  affected  by  contract  labor  provisions 215 

STATE  OFFICERS. 

Admission  of  into  immigrant  stations  for  the  preservation  of 

the  peace  299 

STEAMSHIP  COMPANIES. 

Obligations  of  with  regard  to  return  of  rejected  aliens  found  un- 
lawfully in  the  United  States 265 


See  Master  of  Vessel. 

SURGEON  OF  VESSEL. 

Obligations  of  with  regard  to  manifests. 

See  Manifests. 

TEMPORARY  REMOVAL  OF  ALIENS. 

Obligations  of  transporter  with  regard  to  aliens  during 250 

TESTIMONY. 

Of  husband  against  wife,  See  Husband. 

Of  aliens  whose  deportation  is  suspended,  See  Deportation,  Sus- 
pension Of. 

THREE-YEAR  PERIOD. 

Conflicting  judicial  interpretations  concerning  271 

To  what  classes  of  aliens  applicable 273 

TRANSIT. 

Aliens  seeking,  through  United  States  from  Canada. 


Rules  governing  304 

See  Head  Tax. 

TRANSPORTER. 

Obligation  of,  to  prevent  the  landing  of  aliens  except  as  des- 
ignated by  law  253 

Negligent  failure  of,  to  prevent  landing  of  aliens  deemed  a mis- 
demeanor   254 

See  Master. 

How  penalized 254 

TRANSPORTATION  COMPANIES. 

Encouragement  of  alien  immigration  by. 

Prohibited 227 


By  publications  abroad,  not  followed  by  migration  beyond  the 

power  of  Congress  to  punish 228 

Penalized  by  Section  7 227 

Liability  of,  for  bringing  diseased  aliens  to  the  United  States  . . 230 

TRANSPORTATION  FACILITIES. 

Advertisement  of,  not  prohibited  to  transportation  companies  . . 227 

TUBERCULOSIS. 

Discretionary  admission  for  hospital  treatment  of  aliens  suffer- 
ing from 


258 


General  Index. 


875 


(ACT  OF  FEBRUARY  20,  1907,  Cont.) 

TUBERCULOSIS,  Cont. 

Departmental  rules  on  this  subject 258 

Persons  afflicted  with,  excluded  from  admission 174 

UNITED  STATES. 

What  the  term  includes  for  the  purpose  of  this  act 306 

UNLAWFUL  ENTRY. 

What  constitutes  308 

False  representation  made  to  examining  inspector 308 

By  means  of  naturalization  papers  wrongfully  acquired 308 

VERDICT. 

Courts  may  direct  for  the  Government  in  suit  to  recover  a pen- 
alty for  violation  of  Immigration  Law 221 

VESSELS. 

Clearance  of. 

See  Clearance. 

Masters,  Owners  or  Consignees  of 

Liability  of  for  unlawful  bringing  of  aliens  into  the  United 

States 228 

Liability  of,  for  bringing  diseased  aliens  to  the  United  States  230 
Not  subject  to  fine  for  bringing  diseased  stowaways  to  the 

United  States  233 

Not  subject  to  fine  for  bringing  to  the  United  States  alien  sea- 
men, who  after  deserting  become  insane 233 

WARRANT. 

Of  arrest. 

Sufficiency  of  268 

Of  deportation. 

Valid  if  signed  by  assistant  secretary 268 

Validity  of  not  impaired  because  directed  against  aliens  who 

have  been  permitted  to  land  267 

WIFE. 

Of  naturalized  alien  not  subject  to  the  operation  of  the  Im- 
migration Act  310 

Testimony  of,  against  husband. 

See  Husband. 

WIVES  AND  MINOR  CHILDREN. 

Of  aliens  who  have  declared  their  intention  to  become  citizens  . . 308 

Suffering  with  contagious  diseases 308 

Special  provisions  with  regard  to  their  admission 308 

Rule  regarding  staying  of  deportation  of  311 

ACTORS,  Chinese. 

See  Laborers. 

ADMINISTRATIVE  DECISION  not  final  when  alien  not  subject  to 

the  Immigration  Acts 502 


876 


General  Index. 


(GENERAL  INDEX,  Cont.) 

ADMINISTRATIVE  OFFICERS. 

Abuse  of  authority  by,  See  Abuse  of  Authority. 

Favorable  decisions  of  not  final  482 

Finality  of  their  decisions,  See  Finality. 

Findings  of,  when  not  subject  to  review  under  earlier  acts  ....  483 

Jurisdiction  of,  See  Jurisdiction. 

Obligation  of,  to  pass  on  all  evidence  submitted,  See  Evidence.  . 515 
Obligation  of,  to  pass  on  all  questions  before  them 517 

ADMISSION  OF  OFFENCE  INVOLVING  MORAL  TURPITUDE  ....  177 

When  obtained  by  threats  177 


How  validity  of  Departmental  hearing  affected  thereby. 
See  Fair  Hearing. 

AFFIDAVIT  OF  CHINESE  INSPECTOR. 

Of  laboring  status  of  Chinese  person  as  evidence. 

See  Evidence. 

AIDING  OR  ABETTING  LANDING  OF  CHINESE  PERSONS. 

See  Landing. 


ALIEN  ACT  OF  1798  51 

Purpose  of  different  from  that  of  the  Immigration  Acts 55 

ALIENS. 

Indiscriminate  expulsion  or  exclusion  of, 

A sovereign  right  3 

Undesirable  ’.  3 

Significance  of  substitution  of  term  in  act  of  Mar.  3,  1903  for 

“ alien  immigrants”  436 

Unlawfully  residing  in  the  United  States  are  subject  to  the  juris- 
diction thereof  425 

ALLEGATION  OF  CITIZENSHIP. 

By  Chinese  person  seeking  to  remain  in  the  United  States. 

Effect  of  under  the  present  law 496 

Under  earlier  acts 486 

ALLEGIANCE. 

Temporary,  not  affected  by  fact  that  residence  is  unlawful  ....  426 

ANARCHISTS. 

Excluded  by  Act  of  March  3,  1903  79 

Domiciled,  right  of  to  return  to  this  country 456 

Right  of  Congress  to  exclude  79 


APPEAL. 

Denial  of  right  of,  See  Right  of  Appeal. 

What  constitutes  evidence  of  disposal  of,  See  Evidence. 

ARBITRARY  EXPULSION  OR  EXCLUSION  of  aliens  not  permissible  138 
ARTICLE  I,  Section  9,  of  the  Constitution. 

To  whom  applicable  56 

ATTEMPT  TO  LAND  CHINESE  PERSONS. 

See  Landing. 

BANISHMENT. 

See  Expulsion. 


General  Index. 


877 


(GENERAL  INDEX,  Cont.) 

BIRTH. 

Certificate  of,  as  evidence  in  deportation  proceedings 602 

In  China,  presumption  of  599 

Presumption  of,  how  rebutted  599 

In  the  United  States,  evidence  of,  See  Evidence. 

BOARD  OF  SPECIAL  INQUIRY. 

As  provided  by  Act  of  Mar.  3,  1893  479 

Favorable  decisions  of  not  res  adjudicata  463 

Not  a court  of  justice  40 

BRINGING  CHINESE  PERSONS  TO  THE  UNITED  STATES  UNLAW- 
FULLY. 

See  Landing. 

BURDEN  OF  PROOF. 

Not  with  the  State  in  deportation  proceedings  131 

Of  alien 's  inadmissibilty  on  Boards  of  Special  Inquiry 555 

Under  the  Chinese  Exclusion  Acts, 

Is  on  the  alien  to  prove  his  right  to  enter  or  remain 553,  565 

When  on  Government  to  prove  Chinese  nationality  of  defend- 
ant   569 

Under  the  Immigration  Act. 

Generally  on  Government  to  show  that  alien  is  not  entitled  to 

enter  or  remain  553,  560 

On  aliens  whose  ticket  or  passage  is  paid  for  with  the  money  of 

another  560 

On  assisted  aliens  560 

On  Japaneses  and  Korean  laborers 560 

Departmental  rule  concerning  561 

BUYING  AND  SELLING  MERCHANDISE. 

As  an  essential  element  of  mercantile  status  under  the  Chinese 

Exclusion  acts  611 

CALIFORNIA. 

Act  of  1873,  held  unconstitutional  59 

“CAUSE.” 

Deportation  proceedings  not  within  the  meaning  of  Revised 

Statutes  131 

CERTIFICATE. 

Defective,  no  evidence  of  right  to  enter  or  remain 579 

As  evidence  of  the  right  of  holder  to  enter  or  remain 576 

Defective,  renders  holder  subject  to  deportation 579 

Consular,  sufficiency  of  602 

Counterfeiting  of  under  the  Chinese  exclusion  acts 110 

What  constitutes  121 

Issued  to  Chinese  person  under  Treaty  of  Dec.  8,  1894. 

How  rebutted  579 

Of  entry  and  return. 

Evidential  effect  of  578 

Evidential  effect  if  defective  in  form 579 


878 


General  Index. 


(GENERAL  INDEX,  Cont.) 

CERTIFICATE,  Cont. 

Of  identity  (issued  under  Departmental  Regulations). 

Effect  of  on  Government’s  right  to  deport 601 

Distinguished  from  certificates  of  registration  578 

Of  leave  (issued  by  Canadian  Government). 

See  Evidence. 

Of  registration. 

Evidence  available  in  absence  of 581 

Generally  prescribed  by  statute 581 

Not  prescribed  by  statute  in  proving  American  citizenship  . . 583 

Not  prescribed  by  statute  in  proving  prior  mercantile  status 

during  registration  period  584 

Conflict  of  judicial  opinion  on  this  point 585 

Not  prescribed  by  statute  in  proving  present  mercantile  status  586 
Prescribed  by  statute  in  the  case  of  Chinese  laborer  who  al- 
though merchant  at  the  time  of  entry  becomes  laborer  dur- 
ing the  registration  period 587 

Failure  of  Chinese  laborer  to  possess  prima  facie  evidence  of 

his  unlawful  presence  599 

Distinguished  from  11  section  6 certificates”  and  certificates  of 

return  580 

As  conclusive  evidence  of  right  of  lawful  holder  to  remain  . . 580 

Absence  of,  constitutes  only  prima  facie  evidence  that  Chinese 

laborer  is  unlawfully  in  the  United  States 580 

Rights  acquired  under,  how  lost  by  Chinese  laborer 580 

Not  subject  to  collateral  attack  in  the  hands  of  lawful  holder  581 
Not  subject  to  cancellation  by  United  States  Commissioner  on 

ground  that  it  was  obtained  by  fraud 581 

Of  no  evidential  effect  if  spurious 581 

When  issued  under  act  of  1892,  covers  requirements  of  act  of 

1893  581 

Issued  to  Chinese  laborer  as  proof  of  his  right  to  remain 345 

Provided  for  Chinese  in  the  Hawaiian  Islands 123 

Of  return. 

As  evidence  of  the  right  of  Chinese  laborers  to  re-enter  the 

United  States 563,  578,  579 

Prescribed  by  act  of  Sept.  13,  1888  356 

Issued  by  United  States  Commissioner. 

Not  legal  evidence  of  the  facts  on  which  Commissioner’s  de- 
cision was  based  602 

“ Section  6.” 

Absence  of  on  part  of  minor  child  of  domiciled  Chinese  mer- 
chant gives  rise  to  no  presumption  of  unlawful  presence  . . 600 

As  evidence  of  the  right  of  holder  to  enter  the  United  States. . 562 

As  sole  evidence  to  establish  the  right  of  holder  to  enter  the 

United  States  '•  577 


General  Index. 


879 


(GENERAL  INDEX,  Cont.) 

CERTIFICATE,  Cont. 

Deficient,  does  not  constitute  prima  facie  right  of  holder  to 

enter 593 

Evidence  of  the  right  to  enter  as  opposed  to  proof  of  the  right 

to  remain  600 

Failure  of  wife  or  minor  child  of  Chinese  merchant  to  have  in 
their  possession  creates  no  presumption  that  they  are  un- 
lawfully in  the  United  States 352 

How  prima  facie  evidence  afforded  by,  rebutted 579 

Not  required  of  domiciled  Chinese  merchants 355,358,589 

Not  required  of  wives  and  minor  children  of  Chinese  merchant 

domiciled  in  the  United  States 589,  347,  578 

Want  of  possession  of  by  domiciled  Chinese  merchant  gives  rise 
to  no  presumption  of  unlawful  presence  in  the  United 
States  ’. 599 

CHILD. 

Born  in  detention  shed  pending  detention  of  mother. 

Not  a citizen  of  the  United  States  * 425 

Political  status  of  discussed 321 

Born  of  aliens  unlawfully  residing  in  the  United  States  is  a 

citizen  of  the  United  States 425 

CHILDREN. 

Born  without  the  United  States  of  alien  parents. 

When  deemed  citizens  of  the  United  States 380 

Born  outside  the  limits  of  the  United  States,  political  status  of. 

Whose  fathers  are  citizens  thereof  380 

Of  parents  permanently  residing  abroad 380 

Of  parents  residing  temporarily  abroad 380 

Of  naturalized  aliens  born  prior  to  naturalization. 

Residence  of,  in  United  States  a necessary  element  of  citizen- 
ship of  381 

CHINA. 

Presumption  regarding  birth  in. 

See  Birth. 

CHINESE  CONSUL  GENERAL. 

Validity  of  certificate  issued  by. 

See  Certificate. 

CHINESE  EVIDENCE. 

See  Evidence. 

CHINESE  EXCLUSION  ACTS. 

Act  of  May  6,  1882,  as  amended  by  that  of  July  5,  1884  85 

Certificates  of  return  and  ‘‘section  6 certificates”  distinguished  86 
The  certificate  made  the  sole  evidence  permissible  to  establish  a 

right  of  entry  by  the  amending  act  of  July  5,  1884. ...  88 

Inapplicability  of  the  amendment  to  certain  classes  of  Chinese  88 
General  purposes  of  as  compared  with  that  of  the  Immigration 

acts  85 


880 


General  Index. 


(GENERAL  INDEX,  Cont.) 

CHINESE  EXCLUSION  ACTS,  Cont. 

Interpreted  to  preserve  rights  secured  by  the  treaty  with  China 

of  Nov.  17,  1880  85 

Issuance  of  certificates  under * 85 

Primary  object  of 86 

Coming  of  the  Chinese  laborers  temporarily  suspended  by 85 

Not  violative  of  treaty  obligations  assumed  by  the  treaty  with 

China  of  Nov.  17,  1880  85 

Provisions  against  landing  Chinese  not  applicable  to  case  of 
Chinese  seamen  shipping  from  United  States  for  return 

voyage  ., 105 

Act  of  Sept.  13,  1888  89 

Section  12  of,  not  to  be  regarded  as  binding  on  the  courts  ....  479 

Section  penalizing  unlawful  landing  re-enacted  by  act  of  April 

29,  1902  105 

Act  of  Oct.  1,  1888. 

As  abrogating  treaty  rights  secured  to  Chinese  laborers 46 

Not  invalid  because  it  abrogated  treaty  rights  secured  to  Chinese 

by  the  treaties  of  1868  and  1880  47 

Penal  provisions  of  earlier  acts  extended  to 105 

Prohibition  against  the  return  of  any  Chinese  laborer  to  the 

United  States  91 

The  act  held  constitutional 91 

Act  of  May  5,  1892. 

Provisions  of  not  impaired  by  treaty  with  China  of  Dec.  8,  1894  32 

Section  4 held  unconstitutional 131 

Act  of  Nov.  3,  1893. 

Extension  of  time  within  which  Chinese  laborers  within  the 

United  States  might  register 96 

Chinese  laborers  and  merchants  defined 96 

Statutory  proof  of  prior  mercantile  status  required  of  returning 

Chinese  merchants  96 

Provisions  regarding  the  granting  of  bail  in  deportation  pro- 
ceedings   98 

Held  constitutional  15 


CHINESE  INSPECTORS. 

Evidence  of  regarding  Chinese  nationality. 

See  Evidence. 

CHINESE  LABORERS. 

Pacts  sufficient  to  show  status  of.  See  Evidence. 

Failure  of  to  procure  return  certificates.  See  Certificate. 


Highbinders  and  gamblers  are  606 

Prohibited  from  returning  to  the  United  States  by  Act  of  Oct.  1, 

1888— See  Act  Oct.  1,  1888. 

Residing  in  the  United  States  may  become  merchants 351 

Although  they  have  failed  to  register  during  the  registration 

period  352 


General  Index. 


881 


(GENERAL  INDEX,  Cont.) 

CHINESE  LABORERS,  Cont. 

Right  of  to  come  to  the  United  States  restricted  but  not  abso- 
lutely prohibited  by  the  treaty  of  Nov.  17,  1880  28 

Term  held  to  include  all  Chinese  other  than  those  specially 

enumerated  as  exempt  605 

Who  are  t 605,606 

Restaurant  keepers,  not  necessarily  606 

Cooks  605 

Store  clerks  '.....• 605 

Laundrymen  606 

When  held  not 608 

Tenant  and  operator  of  fruit  farm  607 

Chinese  merchant  during  imprisonment  for  felony  607 

Wbo  are  not. 

Actors  609 

Waiters  on  board  ship  609 

Members  of  ships  crew  609 

Wives  and  minor  children  of  Chinese  merchants 610 

Wbo  become  merchants,  subject  to  deportation  if  original  entry 

is  unlawful 352 

Without  certificates  of  registration,  presumption  of  unlawful 
presence  of. 

See  Certificate  of  Registration. 

CHINESE  MERCHANTS. 

Domiciled  in  the  United  States,  without  “section  6 certificate’ f 

not  presumed  to  be  unlawfully  here 600 

Domiciled  here  need  not  obtain  “section  6 certificates” 355 

Who  become  laborers, 

Effect  of  change  of  status  on 359 

Effect  of  absence  on  status  of 360 

CHINESE  PERSONS. 

Cannot  acquire  United  States  citizenship  by  naturalization 567 

Wben  held  outside  the  operation  of  the  Chinese  Exclusion  Laws  357 

CHINESE  WIFE  OF  AMERICAN  CITIZEN. 

Status  of  367 

CHINESE  WOMEN. 

Incapable  of  naturalization  by  marriage 384 

Rights  acquired  by  marriage  to  a citizen  of  the  United  States  . . 384 

CITIZENSHIP. 

Acquisition  of, 

Generally  involves  no  question  of  the  immigration  law  378 

Allegation  of, 

Insufficient  to  justify  the  issuance  of  a writ  of  habeas  corpus  . . 496 

See  Allegation  of  Citizenship. 

By  marriage,  whether  residence  of  wife  in  United  States  necessary 
to  confer.  See  Residence. 

Avoids  the  operation  of  the  Immigration  law 412 


882 


General  Index. 


(GENERAL  INDEX,  Cont.) 


Right  of  aliens  to  acquire  purely  statutory 377 

When  a question  of  fact,  to  be  determined  by  administrative 

authorities  534 

When  a question  of  law  may  be  inquired  into  by  the  courts  . . 535 

Of  Chinese  persons. 

A question  of  fact  for  administrative  officers  to  decide  534 

Of  persons  of  Chinese  descent, 

May  be  proved  by  Chinese  witnesses  584 

Resumption  of  by  alien  during  minority  of  his  children,  effect  of.  380 


CLASS. 

Exclusion  or  expulsion  by. 

See  Exclusion  or  Expulsion. 

CLERKS. 

See  Chinese  Laborers. 

COLLECTOR  OF  CUSTOMS. 

Authorized  to  pass  on  right  of  Chinese  seeking  admission  under 


the  Exclusion  Act  of  1882  478 

Empowered  to  decide  all  questions  regarding  right  of  Chinese 
person  to  land,  subject  to  review  by  the  Secretary  of 
Treasury  under  the  Chinese  Exclusion  Act  of  Sept.  13, 

1888  479 

No  power  under  the  Act  of  Aug.  3,  1882,  to  reverse  finding  of 

fact  of  Board  of  Commissioners  484 

Performance  of  duty  of,  not  subject  to  supervisory  control  of 

courts  483 

Question  of  correctness  of  finding  of,  not  subject  to  judicial 

review  483 

Refusal  by  to  issue  return  certificate  to  Chinese  laborer  not  sub- 
ject to  judicial  injury  483 

COMMERCE. 

Persons  the  subject  of  as  well  as  goods  58 

COMMERCIAL  DOMICILE  acquired  of  Chinese  by  treaty  subject  to 

termination  by  subsequent  acts  of  Congress  48 

COMMISSIONER,  U.  S. 

Effect  on  Chinese  person’s  right  to  remain  of  judgment  of  dis- 
charge issued  by  345 

Has  no  authority  to  cancel  certificate  of  residence  346 

COMMUNICATED  STATUS.  See  Status. 

Constitutes  a communication  of  rights  and  not  a change  of  per- 
sonal condition  369 

Doctrine  of  does  not  apply  to  aliens  seeking  admission  under  the 

acts  on  immigration  373 

Existence  of,  depends  on  genuineness  of  relationship  claimed  . . 367 

Loss  of,  by  cessation  or  abandonment  of  the  rights  of  the  father 

or  husband  369 

By  return  of  the  father  to  China 369 


General  Index. 


883 


(GENERAL  INDEX,  Cont.) 

COMPULSION. 

Statements  made  by  witness  under,  may  be  disregarded  by  court 

in  deportation  proceedings,  597 

CONGER,  AMERICAN  MINISTER  TO  CHINA. 

Letter  re  citizenship  of  naturalized  Hawaiian  subject 125 

CONGRESS. 

Constitutional  power  of  to  exclude  or  expel 128 

No  legislation  by,  can  deprive  person  born  in  the  United  States 

of  American  citizenship  129 

Cannot  provide  that  unlawful  presence  of  aliens  shall  subject 

him  to  infamous  punishment  without  jury  trial  132 

May  impose  administrative  fine  for  bringing  diseased  aliens  to 

the  United  States  132 

Power  of. 

To  designate  ports  of  entry 15 

To  make  administrative  officers  final  judges  on  questions  of 

fact  regarding  the  right  of  aliens  to  enter 135,  480 

To  prescribe  conditions  under  which  deportation  is  to  be  ef- 
fected   15 

To  punish  violations  of  the  Immigration  statutes 68 

To  regulate  the  admission  of  aliens  for  the  purpose  of  transit  15 

Right  to  legislate  regarding  the  admission  of  aliens  subject  only 

to  the  limitations  contained  in  the  Constitution 129 

Source  of  power  of  to  exclude  or  expel  aliens 16 

CONSTITUTIONAL  GUARANTEES. 

Limitations  on  right  of  aliens  to  invoke 134 

Not  available  to  aliens  merely  because  within  the  territorial  limits 

of  the  United  States  18 

Not  available  to  aliens  not  admitted  to  residence  in  the  United 

States  17 

Of  due  process  of  law  available  to  aliens  in  deportation  proceed- 
ings   139 

Of  freedom  of  speech,  worship  or  petition  not  available  to  aliens 

seeking  admission  134 

Right  of  aliens  to  invoke 17, 129 

Not  generally  available  to  aliens  in  deportation  proceedings  . . 129, 134 
Otherwise  available  to  aliens  130 

CONSULAR  CERTIFICATE. 

See  Certificates. 

CONVICTION  of  offence  of  importing  women  for  an  immoral  purpose 

held  a prerequisite  of  deportation 453 

COOLIE  TRADE  ACTS  OF  1862  AND  1869  55 

COUNTERFEITING  CERTIFICATES. 

See  Certificates. 

CRIMES  and  penalties  under  the  Chinese  Exclusion  Acts 104 


884  General  Index. 

(GENERAL  INDEX,  Cont.) 

CRIMINAL  CHARGE. 

When  acquittal  of  not  res  adjudicata  in  deportation  proceedings. 
See  Acquittal. 

DECLARATION  OF  INTENTION. 

To  become  a citizen  of  the  United  States,  does  not  alter  political 


status  of  alien  379 

Unavailable  to  vest  child  of  declarant  with  citizenship 381 

DEPARTURE  FROM  UNITED  STATES. 

Shipping  on  vessel  for  round  trip  does  not  constitute 361 

DEPORTATION. 

Aliens  may  not  be  arbitrarily  subjected  to 139 

Not  a punishment  for  crime  6 

When  conviction  held  a necessary  prerequisite  of. 

See  Conviction. 

Proceedings  not  criminal  in  nature 6 


DEPORTATION  PROCEDURE. 


ADMITTING  DECISION. 

No  appeal  from  under  the  Chinese  Exclusion  Laws 620 

AGREED  STATEMENT  OF  FACTS. 

What  constitutes  implied  assent  to 652 

When  based  on  sham  marriage  ceremony,  absence  of 368 

APPEALS. 

To  the  District  Court. 

Nature  of,  in  general  637 

Amounts  to  the  granting  of  a trial  de  novo 638 

Must  be  taken  within  the  statutory  period 638 

Right  of,  does  not  extend  to  the  government 638 

How  affected  by  section  25  of  the  new  judicial  code 638 

Right  of  enjoyed  under  Act  of  Sept.,  1888  not  taken  away  by 

subsequent  exclusion  acts  639 

Right  of,  does  not  involve  right  to  jury  trial 639 

Jurisdiction  of  district  court  on  appeal  not  ousted  by  irregulari- 
ties of  process  640 

Jurisdiction  of  district  judge  limited  to  appeals  from  his  own 

district  640 

How  taken  640 

Is  an  appeal  to  the  court  and  not  to  the  judge  as  an  individual  641 
Judge  must  direct  his  order  to  be  entered  by  the  clerk  of  the 

court  641 

Constitutes  a special  privilege  641 

Must  be  taken  within  ten  days  to  give  district  court  jurisdiction  641 

WThen  appellee  entitled  to  have  case  docketed  and  dismissed 641 

Notice  of  an  appeal  may  be  given  orally 641 


General  Index.  885 

(DEPORTATION  PROCEDURE,  Cont.) 

APPEALS,  Cont. 

Appearance  of  counsel  to  give  notice  does  not  constitute  an 

appeal  641 

Lies  from  refusal  to  grant  motion  for  a new  trial  641 

Notice  of,  to  be  given  to  commissioner  within  statutory  period  . . 642 

Order  of  judge  allowing  unnecessary 642 

Fact  that  notice  of  is  entitled  in  the  district  court  does  not  affect 

its  sufficiency  642 

Effect  of  is  a hearing  de  novo  on  all  the  facts 642 

Hearing  on  cannot  be  made  on  transcript  of  proceedings  before 

the  commissioner  642 

Appeal  involves  consideration  of  the  evidence  by  the  court 642 

Effect  of,  is  to  suspend  the  judgment  of  the  commissioner 642 

Effect  of,  is  to  stay  deportation  of  alien  if  the  court  so  orders. . 643 

How  question  of  bail  dealt  with  on  appeal  from  an  order  dis- 
charging petitioner  in  habeas  corpus  proceedings 649 

Abandonment  of,  what  constitutes,  643 

To  the  Circuit  Court  of  Appeals. 

When  may  be  taken  from  the  district  court 643 

Must  be  sought  by  way  of  appeal  and  not  by  writ  of  error 644,  645 

Irregularities  in  court  below  waived  if  claimed  for  the  first  time 

on 645 

Right  of,  when  constitutional  questions  are  involved 645 

To  the  Supreme  Court  of  the  United  States 646 

By  appeal  from  a district  or  circuit  court 646 

By  certification  from  the  circuit  court  of  appeals 647 

By  writ  of  certiorari  from  the  Supreme  Court  directed  to  a cir- 
cuit court  of  appeals  648 

Reversal  of  findings  on 650 

Findings  not  subject  to  reversal  merely  because  case  involves 

construction  of  foreign  treaty  650 

Findings  of  fact  by  Commissioner  not  reviewable  on  habeas 

corpus  652 

Findings  of  fact  by  Commissioner  or  lower  court  not  generally 

reversed  unless  obviously  incorrect  650 

Finding  that  Chinese  is  unlawfully  in  the  United  States,  when 

Supreme  Court  will  not  re-examine  650 

Findings  of  fact  not  reversed  merely  because  Chinese  evidence 

affords  Government  no  opportunity  for  rebuttal 651 

Favorable  finding  of  Commissioner  not  subject  to  review  in  the 

absence  of  abuse  on  his  part 651 

Favorable  findings  reviewed  on  appeal  where  defendant  has 
been  discharged  without  having  proved  his  right  to  remain 

by  evidence  required  by  statute 651 

Findings  reversed  by  Supreme  Court  when  defendants  shown  to 

be  merchants  as  a matter  of  law 625 

To  the  courts  by  writ  of  habeas  corpus,  where  and  how  available. . 621 


General  Index. 


886 

(DEPORTATION  PROCEDURE,  Cont.) 

APPEALS,  Cont. 

To  the  Department 

From  a board  of  special  inquiry 620 

From  an  immigration  officer  620 

From  favorable  decision  of  Board  of  Special  Inquiry,  by  third 

member  620 

ARREST  AND  DEPORTATION. 

Under  the  Chinese  Exclusion  Acts. 

Arrest,  method  of 628 

On  formal  complaint  under  oath  not  necessary 629 

Complaint  and  pleadings,  requisites  of  629 

Official  character  of  complainant  not  necessary  allegation  ....  630 

Allegation  of  residence  of  Chinese  person  in,  surplusage  ....  630 

Allegation  in,  that  Chinese  person  here  without  certificate  suf- 
ficient on  which  to  base  a finding  that  he  is  unlawfully  here  630 

Under  the  Immigration  Law. 

Arrest,  method  of  623 

BAIL  OR  OTHER  BOND. 

Release  of  aliens  on  under  the  Chinese  Exclusion  Law. 

In  the  case  of  Chinese  seeking  to  enter 659 

May  be  taken  for  temporary  purposes  only 659 

Required  of  Chinese  persons  claiming  to  be  exempt  pending 

investigation  and  final  determination  of  status 659 

Circular  No.  220  659 

Required  of  Chinese  laborers  in  transit  through  the  United 

States  659 

Transit  bonds  held  lawful 660 

Required  of  Chinese  seamen  660 

Chinese  seamen  charged  with  violating  customs  laws  and 

brought  to  trial  may  be  released  on 661 

Granting  on  in  connection  with  writ  of  habeas  corpus  661 

Denied  Chinese  person  pending  hearing  in  habeas  corpus  by 

Act  of  May  5,  1892  662 

Denied  Chinese  persons  pending  appeal  from  a refusal  to  grant 

the  writ  662 

Provisions  for  granting  during  use  of  Chinese  as  witness  for 

the  Government  663 

In  the  case  of  Chinese  arrested  within  the  country 665 

Authority  to  grant  determined  by  statute 665 

May  be  granted  pending  hearing  before  United  States  Com- 
missioner   666 

May  be  granted  pending  appeal  from  the  decision  of  a Com- 
missioner or  court  666 

Will  be  refused  where  a defendant  enters  and  remains  in  plain 

defiance  of  law  666 

Pending  the  use  of  Chinese  as  witness 667 

Release  of  aliens  on  under  the  Immigration  Law. 


General  Index. 


887 


(DEPORTATION  PROCEDURE,  Cont.) 

BAIL  OR  OTHER  BOND,  Cont. 

In  the  case  of  entering  aliens 653 

For  Permanent  Purposes. 

Aliens  who  may  be  admitted  on  653 

“Public  charge”  bonds  653 

Acceptance  of  within  discretion  of  Secretary  of  Commerce 

and  Labor  653 

Acceptance  of,  not  question  for  judicial  review 653 

Enforceable  in  the  courts 653 

General  qualifications  regarding  validity  of  653 

School  attendance  bond  654 

For  Temporary  Purposes '. ...  654 

For  transit  of  Japanese  654 

For  hospital  treatment  655 

Bond  for  hospital  treatment  applicable  to  Chinese 656 

Bonds  for  hospital  treatment  for  residents  of  contiguous  ter- 
ritory   657 

For  other  temporary  purposes  657 

In  connection  with  application  for  writ  of  habeas  corpus 657 

Inherent  discretionary  power  of  courts  to  issue 658 

In  the  case  of  aliens  detained  for  use  as  witnesses 658 

In  the  case  of  aliens  arrested  within  the  country. 

Pending  issuance  of  deportation  warrant 664 

In  connection  with  a writ  of  habeas  corpus 664 

Granting  of,  within  the  discretion  of  the  courts 664 

For  use  of  aliens  as  witnesses  664 


BOARD  OF  SPECIAL  INQUIRY. 

Re-opening  of  cases  by,  see  Re-opening  of  Cases. 
CERTIFICATION  of  judgment  by  United  States  Commissioner. 
Effect  of  absence  of,  see  United  States  Commissioner. 

CERTIORARI. 


When  issued  by  Supreme  Court  of  the  United  States 648 

Supreme  Court  eannot  issue  when  it  has  appellant  jurisdiction  to 

review  by  appeal  or  writ  of  error 649 

May  be  issued  whether  or  not  the  advice  of  the  Supreme  Court 

is  sought  649 

Will  not  be  issued  unless  application  therefor  to  review  decision 
of  circuit  court  of  appeals  made  within  one  year  of  the 
order  sought  to  be  reviewed 649 

CHINESE. 

Subject  to  inspection  both  under  Immigration  and  Exclusion  laws  619 

COMPLAINT  AND  PLEADINGS  UNDER  THE  CHINESE  EX- 
CLUSION ACTS. 

See  Arrest  and  Deportation. 

Complaint. 

Not  formal  in  deportation  proceedings 617 


888 


General  Index. 


(DEPORTATION  PROCEDURE,  Cont.) 

COMPLAINT  AND  PLEADINGS,  Cont. 

Defects  in  do  not  affect  jurisdiction  of  quasi- judicial  officers  in 

deportation  proceedings  617 

CONTEMPT. 

For  refusal  to  testify  in  deportation  proceedings,  see  Deporta- 
tion Proceedings. 

COUNSEL. 

Alien’s  right  to,  satisfied  by  representation  before  the  Secretary  625 
When  alien  wrongfully  prevented  from  employing,  how  warrant 

and  proceedings  thereunder  affected  thereby 625 

Eight  of  alien  to,  at  hearing  on  warrant  of  arrest 624,  625 

No  obligation  on  administrative  officer  to  permit  presence  of  de- 
fendant’s counsel  in  deportation  proceedings 617 

Por  defendant  may  be  excluded  from  hearings  in  deportation  pro- 
ceedings   617 

CRIME. 

Deportation  not  a punishment  for  616 

CUSTODY  of  alien  during  proceedings  following  warrant  of  arrest  . . 624 

DE  BENE  ESSE  PROCESS. 

Preservation  of  the  testimony  of  alien  witnesses  by 665 

DEDIMUS  POTESTATEM. 

Power  of  District  Court  to  issue  in  deportation  proceedings  . . . 640 

DEFENDANT. 

Presence  of,  in  deportation  proceedings  cannot  be  demanded  as 

of  right  617 

DEPORTATION  PROCEDURE. 

Character  of,  in  General. 

Does  not  involve  the  right  to  a jury  trial 616 

Civil  and  not  criminal  in  nature 616 

Deportation  thereunder  does  not  constitute  a punishment  for 

crime  616 

No  obligation  on  administrative  officer  to  administer  oaths  at 

hearings  in  617 

Defendants  may  be  required  to  testify  for  the  Government 

therein  618,  619 

Witnesses  may  be  punished  for  contempt  for  failure  to  testify  at  619 

DEPORTATION  proceedings  “not  causes”  618 

Warrant  of,  see  Warrant. 

DEPOSITIONS  IN  PERPETUAM  REI  MEMORIAM. 

Not  binding  on  administrative  officers  in  deportation  proceedings  620 
ENTRY,  UNINTENTIONAL,  of  Chinese  person  from  Mexico. 

How  it  affects  the  question  of,  to  which  country  he  is  to  be  de- 
ported   681 

EXAMINATION  OF  ALIENS. 

Upon  arrival  619 

FAVORABLE  DECISION  of  administrative  officer — where  revocable. . 617 


General  Index.  , , 889' 

(DEPORTATION  PROCEDURE,  Cont.) 

FINDINGS. 

Written,  unnecessary  in  Deportation  Proceedings 617" 

HABEAS  CORPUS. 

When  relief  in  proper  621 

Denied  petitioner  when  proceedings  are  based  on  the  disregard 
by  an  inspection  officer  in  deportation  proceedings  of  the 
contents  of  a deposition  taken  in  perpetuam  rei  memoriam  620 
Right  of  courts  to  intervene  by,  when  warrant  of  deportation 
designates  as  the  alien’s  destination  a country  other  than 

that  from  which  he  came  676 

See  Appeal  to  the  Courts  by  Writ  of. 

Varying  practices  of  courts  regarding  the  issuance  of  writ  of . . . 621 

Issuance  of  writ  on  satisfactory  prima  fade  showing 621 

Issuance  of  writ  in  connection  with  issuance  of  a rule  to  show 

cause  622 

HEARING  AFTER  ARREST  ON  WARRANT. 

Provisions  for  624 

INSPECTION  OF  CHINESE  ALIENS. 

Under  both  Immigration  and  Exclusion  Laws 619 

JURY  TRIAL. 

Right  to  not  involved  in  deportation  proceedings 617 

NEW  TRIAL. 

When  defendant  in  deportation  proceedings  not  entitled  to  ....  653 

OATHS. 

Collector  of  Customs  not  obliged  to  administer  in  deportation 

proceedings 617 

ORDER  OF  DEPORTATION. 

Issued  under  the  Chinese  Exclusion  Acts. 

Need  not  contain  statement  of  country  whence  alien  came 636 

Need  not  refer  to  Act  of  Congress  under  which  alien  is  held  to 

be  unlawfully  in  the  United  States  636 

Unnecessary  instructions  contained  in  considered  surplusage. . . . 636 

Facts  in  the  order  held  sufficient  to  warrant  deportation 636 

Will  be  vacated  where  impossible  of  execution 637 

Cannot  contain  findings  based  on  facts  outside  of  the  record  . . . 637 

PERPETUATION  OF  TESTIMONY. 

Provisions  for  the  taking  of  depositions  at  the  direction  of  Cir- 
cuit Courts  contained  in  section  866  of  the  Revised  Stat- 
utes apply  primarily  to  matters  cognizable  in  United 
States  Courts  and  not  to  matters  arising  in  deportation 

proceedings  620 

PLACE  TO  WHICH  DEPORTED. 

Power  of  courts  to  interfere  in  habeas  corpus  if  wrong  country  is 

designated  in  warrant  of  deportation 676 

Under  the  Chinese  Exclusion  Laws. 

In  the  case  of  Chinese  refused  admission  at  seaports 677 


890 


General  Index. 


(DEPORTATION  PROCEDURE,  Cont.) 

PLACE  TO  WHICH  DEPORTED,  Cont. 

In  the  case  of  Chinese  refused  admission  at  land  border  ports. . 678 

In  the  case  of  Chinese  arrested  within  the  country 679 

Burden  of  proof  on  Chinese  so  arrested  to  show  his  right  to  be 

deported  elsewhere  than  to  China 679 

How  affected  by  temporary  residence  on  foreign  contiguous  terri- 
tory   680 

How  affected  by  valid  right  of  Chinese  to  remain  in  foreign  con- 
tiguous territory  680 

How  affected  by  unintentional  entry  from  foreign  contiguous 

territory  681 

Chinese  arrested  for  unlawiul  presence  in  the  United  States  after 

surreptitious  entry  672,  674 

Method  of  procedure  in  such  cases , 675 

Under  the  Immigration  Laws. 

In  the  case  of  aliens  refused  admission  at  seaports 667 

Obligation  on  transportation  companies  to  return  the  alien  to 

the  foreign  port  from  whence  he  came 667 

Provisions  for  aliens  seeking  to  enter  the  United  States  from 

Canadian  seaports  668 

In  the  case  of  aliens  refused  admission  at  land  border  ports. . . 668 

Special  provisions  in  the  case  of  citizens  or  bona  fide  residents 

of  Canada  or  Mexico  668 

Provisions  for  other  aliens  entering  through  these  countries 

coming  from  trans-oceanic  ports 668 

In  the  case  of  aliens  arrested  within  the  country 669 

When  the  alien  comes  direct  to  the  United  States 669 

When  the  alien  comes  to  the  United  States  by  way  of  foreign 

contiguous  territory  669 

Held  to  mean  the  place  of  nativity  or  citizenship 670 

How  affected  by  temporary  residence  of  alien  in  foreign  con- 
tiguous territory  670 

In  the  case  of  aliens  entering  the  United  States  at  other  places 

than  ports  of  entry  671 

In  the  case  of  Chinese  who  enter  surreptitiously 672 

PROCESS. 

Where  returnable  under  the  Chinese  Exclusion  Act 631 

RECORD  in  warrant  proceedings. 

To  whom  forwarded 626 

REJECTION  AND  DEPORTATION  OF  ALIENS  619 

RE-OPENING  OF  CASES. 

Effect  of  as  to  action  to  be  taken  by  a Board  of  Special  In- 
quiry under  the  Immigration  Act 621 

As  to  the  immigration  official  in  charge  under  the  Chinese  Ex- 
clusion Act  621 

RETURN  CERTIFICATE  issued  by  the  Canadian  government. 

How  its  possession  by  Chinese  person  ordered  to  be  deported 


General  Index. 


891 


/ 

(DEPORTATION  PROCEDURE,  Cont.) 

RETURN  CERTIFICATE,  Cont. 

affects  the  question  of  the  place  to  which  he  is- to  be  de- 
ported   680 

REVERSAL  OF  FINDINGS  ON  APPEAL. 

See  Appeal. 

SEPARATION  OF  WITNESSES. 

See  Witnesses. 

SURREPTITIOUS  ENTRY  OF  CHINESE. 

How  destination  of  person  ordered  deported  affected  by 675 

TEMPORARY  RESIDENCE  in  foreign  contiguous  territory. 

Effect  of  upon  destination  of  person  ordered  deported,  see  Place 
to  Which  Deported. 

TESTIMONY. 

M 

Necessity  of  taking  in  deportation  proceedings  required  by  pres- 
ent law  618 

UNINTENTIONAL  ENTRY  of  Chinese  person. 

See  Entry. 

“UNITED  STATES  JUDGE”  includes  Justices  of  the  Supreme  Court 

of  the  District  of  Columbia 640 

UNITED  STATES  COMMISSIONER. 

Effect  of  Findings  of. 

Judgment  not  rendered  on  merits  not  tantamount  to  certificate  636 

Evidential  effect  of  certificate  of  citizenship  issued  by 636 

Judgment  of  deportation  as  evidence  before  the  grand  jury....  636 
Judgment  of  discharge  final  as  to  right  of  Chinese  to  remain. . 635 
Judgment  of  deportation  appealable  by  defendant  as  a matter 

of  right  635 

Judgment  of  deportation  will  stand  if  not  obviously  against  the 

weight  of  testimony 635 

Judgment  of  discharge  by  consent  of  the  United  States  attorney, 

effect  of  635 

Written  statement  by  Commissioner  that  Chinese  person  has  been 
adjudged  to  have  the  right  to  remain  does  not  constitute 

a judgment  conclusive  of  the  fact 635 

Failure  of,  to  certify  his  judgment  to  the  District  Court  does 

not  deprive  the  court  of  jurisdiction 640 

Reversal  of  findings  of  on  appeal,  see  Appeal. 

Powers  of  631 

Held  not  empowered  to  issue  warrants  for  arrest  of  Chinese  per- 
sons taken  in  charge  by  Chinese  inspector  outside  of  Com- 
missioner’s district  633 

May  pass  on  question  of  whether  a Chinese  is  an  American  citizen  634 
May  not  pass  on  question  of  whether  holder  of  certificate  ob- 
tained the  same  by  fraud 634 

Power  of,  to  order  deportation  of  Chinese  persons  not  diminished 

by  treaty  with  China  of  Dec.  8,  1894  634 

Has  no  power  to  inflict  imprisonment  at  hard  labor 634 


.892 


General  Index. 


(DEPORTATION  PROCEDURE,  Cont.) 

UNITED  STATES  COMMISSIONER,  Cont. 

Or  when  there  is  no  legislative  means  to  deport 634 

No  order  of  the  court  necessary  to  authorize  Commissioner  to  pass 

on  deportation  cases  634 

Is  quasi- judicial  officer  and  acts  judicially  in  the  hearings  before 

him 631 

'Contempt  committed  before  him  may  be  punished  on  order  from 

court  to  which  he  is  attached 631 

Not  a court  of  the  United  States  631 

May  not  deport  merely  because  prisoner  refuses  to  take  the  stand  631 

May  consider  depositions  taken  de  bene  esse 631 

Is  not  bound  to  pass  on  deportation  cases  in  the  absence  of  being 

given  his  lawful  fees 632 

May  order  deportation  of  aliens  if  he  has  no  judicial  knowledge 

that  funds  are  unavailable  for  that  purpose 632 

Empowered  to  deport  Chinese  persons  found  without  certificates 

of  residence  632 

Jurisdiction  not  affected  by  prior  excluding  administrative  de- 

**  cision  when  arbitrary  634 

May  not  arbitrarily  or  capriciously  refuse  to  be  satisfied  as  to 

alien's  right  to  remain  in 635 

WARRANT. 

Of  arrest  valid  if  it  alleges  that  alien  entered  the  United  States 

without  inspection  626 

Open  to  inspection  by  alien 624 

Proceedings  under  the  Immigration  Act. 

Generally  held  summary  and  informal  in  nature 626 

When  held  invalid  625 

Do  not,  strictly  speaking,  involve  an  appeal  to  the  Secretary  . . 626 

Distinguished  in  this  respect  from  appeals  to  the  Secretary  from 

excluding  decisions  of  the  Board  of  Special  Inquiry 626 

Arrest  and  deportation  of  alien  on 624 

Application  for  warrant  of  arrest  in 624 

Of  deportation. 

By  whom  issued  626 

Validity  of,  as  affected  by  the  designation  of  wrong  country  as 

alien's  destination  676 

Proceedings  under  the  Chinese  Exclusion  Laws. 

How  issued  628 

How  affected  by  the  existence  or  absence  of  funds  for  the  en- 
forcement of  the  acts 630 

Validity  of,  not  destroyed  by  mere  irregularities 630 

, May  not  be  issued  by  United  States  Commissioner  for  the  arrest 
j of  Chinese  person  taken  in  charge  by  Inspector  out  of 


General  Index. 


893 


(DEPORTATION  PROCEDURE,  Cont.) 

WARRANT,  Cont. 

Commissioner’s  district  to  which  he  is  brought  and  where 
warrant  is  obtained  633 

WITNESSES. 

Separation  of  permissible  in  deportation  proceedings 618 

DETENTION. 

Of  aliens  not  as  yet  admitted  does  not  constitute  a landing  ....  18 

On  board  vessel  for  deportation  constitutes  imprisonment 515 

Case  of  child  born  of  alien  mother  while  in 421 

DISEASE. 

As  affecting  right  of  lawfully  domiciled  alien  to  return 447 

DISEASED  ALIENS. 

Bringing  of,  to  the  United  States  not  a crime 132 

DISCHARGE. 

From  deportation  proceedings  under  the  Immigration  Act  not 

res  adjudicata  540 

Judgment  of,  by  United  States  Commissioner. 

Effect  of,  on  jurisdiction  of  administrative  officers  to  exclude 

returning  alien  who  has  been  granted 507 

His  written  statement  that  Chinese  person  has  been  adjudged 

to  be  lawfully  in  the  United  States  does  not  constitute  . . . 603 

As  evidence,  See  Evidence  602 

DIPLOMATIC  REMEDIES. 

See  Treaty  With  China  of  Nov.  17,  1880. 

DISTRICT  COURT. 

Jurisdiction  of,  to  issue  writ  of  habeas  corpus  on  behalf  of  alien 

held  for  deportation  480 

DOMICILIARY  RIGHTS. 

Acquisition  of,  by  alien  by  running  of  statutory  period,  must  be 

be  continued  by  residence  in  the  United  States 465 

Forfeiture  of. 

See  Domiciled  Alien. 

Loss  of,  by  prostitutes  454 

Loss  of,  by  violation  of  Section  3 of  the  Act  of  Feb.  20,  1907 

as  amended  455 

DOMICILE. 

Abandonment  of,  by  alien  subjects  him  on  return  to  operation 

of  Immigration  laws  443 

Acquisition  of,  as  affected  by  the  minority  of  the  alien 471 

Acquisition  of,  as  distinguished  from  municipal  status 340 

Evidence  insufficient  to  prove  acquisition  of 442 

Exercise  of  rights  incident  to  maintenance  of,  dependent  on 

will  of  the  State  441 

Held  that  minor  cannot  acquire  471 

Contrary  view  471 


894  General  Index. 

(GENERAL  INDEX,  Cont.) 

DOMICILE,  Cont. 

House  of  prostitution  does  not  constitute  471 

Lawfully  acquired  by  aliens  gives  no  vested  right  to  remain  in 

the  face  of  specific  enactment  of  municipal  law 453 

Right  of  aliens  to  acquire  or  maintain  dependent  on  consent  of 

State  440 

Right  of  aliens  to  retain,  how  forfeited  by  law 439 

Right  of  aliens  to  retain  includes  the  right  of  return  to 440 

DOMICILED  ALIENS. 

General  policy  of  the  United  States  with  regard  to  right  of  to 

return  440 

International  status  of  430 

Not  immigrants  445,446 

Right  to  return  when  first  entry  lawful  denied 452 

Affirmed 446 

Right  of,  to  return  when  original  entry  is  unlawful 461 

Right  of,  to  return  when  original  entry  is  lawful 445 

Affirmed  in  case  of  contract  laborer  entering  lawfully  under 

previous  acts  460 

Held  forfeited  by  admission  on  return  of  offence  committed 

prior  to  first  entry  459 

Right  of,  to  return  when  entry  unlawful. 

When  alien  departs  before  three  year  period  has  run  and  re- 
turns subsequent  to  its  expiration  465 

When  alien  departs  after  expiration  of  three  year  period 465 

Right  of,  to  return  where  original  entry  lawful  may  be  forfeited 

by  acts  by  which  right  to  remain  is  forfeited 456 

Where  the  alien  when  abroad  voluntarily  becomes  a member  of 

a class  excluded  from  this  country 456 

When  suffering  from  a dangerous  contagious  disease 446 

Status  of  421 

Who  have  lawfully  entered  the  United  States,  who  when  abroad 
commit  acts  which  would  not  render  them  subject  to  ex- 
pulsion if  here  458 

Author’s  view  concerning  460 

Right  held  to  exist 458 

DUE  PROCESS  OE  LAW  with  regard  to  aliens  seeking  admission. 

Administrative  procedure  provided  by  Congress,  constitutes  ....  337 


ENGLISH  LANGUAGE. 

Want  of  defendant’s  knowledge  of  as  affecting  the  question  of  a 
fair  hearing. 

See  Fair  Hearing. 

EVIDENCE. 

Affidavit  by  Chinese  inspector,  charging  prisoner  with  being  a 


Chinese  laborer,  no  evidence  of  that  status 603 

Duty  of  administration  officers  to  pass  upon  all  that  is  offered  by 

the  applicant  in  deportation  proceedings 515 


General  Index.  895 

(GENERAL  INDEX,  Cont.) 

EVIDENCE,  Cont. 

Given  by  Chinese. 

Evidential  effect  of  596 

Given  by  witness  against  himself  competent  evidence  in  deporta- 
tion proceedings  596 

Given  in  administrative  hearings. 

Court  may  review  only  for  the  purpose  of  finding  whether  a 

fair  hearing  denied  523 

Not  prescribed  by  statute  under  the  Chinese  Exclusion  Acts,  of 

marital  or  filial  relationship 573 

Of  birth  in  the  United  States. 

Pact  that  a person  is  a Chinese  and  not  of  exempt  class  raises 

a presumption  against  600 

On  which  administrative  decision  is  based. 

When  subject  to  judicial  review 558 

Of  Chinese  laborer  status. 

Pacts  constituting  sufficient. 

Where  proprietor  of  restaurant  personally  prepares  food  for 

his  patrons  605 

WRere  Chinese  person  acts  at  times  as  cook  although  mainly 

engaged  in  mercantile  pursuits 605 

WHiere  a Chinese  person  is  employed  as  a clerk  in  a store  . . 605 

Wkere  Chinese  person  is  shown  to  be  a restaurant  or  lodging 

house  keeper  606 

WThere  Chinese  person,  although  a Sunday-school  teacher, 

shown  to  be  a laundryman 606 

Acts  of  prostitution  by  a Chinese  woman 607 

Pacts  showing  that  Chinese  slave  girl  is  brought  here  for 

purposes  of  prostitution  607 

Convict  labor  performed  by  Chinese  person 607 

Pacts  constituting  insufficient. 

Incidental  ironing  of  his  own  clothes,  of  cooking  of  his  own 

meals  by  Chinese  owner  and  operator  of  various  laundries  609 
Housework  done  by  a member  of  a mercantile  firm  for  the 

other  members  609 

Record  of  United  States  Commissioner  showing  that  Chinese 

engaged  in  business  rather  than  in  manual  labor 608 

Of  Chinese  nationality. 

Wbat  constitutes  in  deportation  proceedings  598 

WRen  statements  of  Chinese  inspectors,  competent  evidence  of  599 

Of  citizenship  of  person  of  Chinese  descent  569 

WHien  sufficient  569 

May  be  proven  by  Chinese  witnesses 570 

Wffien  insufficient  571 

Uncontradicted,  of  birth  in  the  United  States  does  not  neces- 
sarily prove  fact  of  citizenship 572 


£96  General  Index. 


(GENERAL  INDEX,  Cont.) 

EVIDENCE,  Cont. 

Of  conjugal  or  parental  relationship  not  prescribed  by  statute 

under  the  Chinese  Exclusion  Laws 573 

Of  domicile. 

Certificate  of  leave  issued  to  Chinese  entitling  him  to  return 

to  Canada  constitutes  601 

Of  admissibility  under  Immigration  acts. 

Personal  appearance  of  applicant  may  be  competent  556 

Of  lawful  presence. 

Length  of  residence  does  not  constitute  600 

Of  prior  mercantile  status. 

Prescribed  by  the  Act  of  Nov.  3,  1893  564 

During  registration  period  574 

May  be  proven  by  Chinese  witnesses  574 

Of  residence  in  the  United  States. 


Allegation  in  complaint  that  defendant  in  deportation  pro- 
ceedings resided  in  the  United  States  on  May  5,  1892, 


without  the  certificate  of  residence,  does  not  constitute . . 599 

Of  right  to  enter  the  United  States. 

Based  on  prior  mercantile  status 574 

Must  be  furnished  by  white  witnesses 574 

Of  right  to  remain  in  the  United  States. 

Based  on  prior  mercantile  status  574 

May  be  furnished  by  Chinese  witnesses 574 

Of  right  to  enter  or  remain  in  the  United  States,  prescribed  by 
statute  under  the  Chinese  Exclusion  Laws. 

In  the  case  of  members  of  the  exempt  classes  566 

In  the  case  of  returning  laborers 566 

In  the  case  of  Chinese  claiming  a commercial  domicile  in  the 

United  States  .......  566 

Of  right  to  enter  or  remain  in  the  United  States  not  prescribed 
by  statute  under  the  Chinese  Exclusion  Laws. 

Evidence  of  citizenship  of  persons  of  Chinese  descent 567 

Citizenship  in  the  United  States. 

Of  right  to  land. 

Consular  certificate  irregularly  issued  does  not  constitute 602 

Of  right  to  remain. 

Fact  that  Chinese  person  has  been  allowed  to  land  by  Collector 

of  Customs  does  not  constitute 600 

Of  the  right  of  unregistered  Chinese  laborers  to  remain  in  the 
United  States. 

Prescribed  by  the  Act  of  May  6,  1892  563 

Of  United  States  citizenship. 

Passport  issued  by  Secretary  of  State  does  not  constitute  ....  601 

Of  unlawful  landing  of  Chinese. 

See  Landing. 


General  Index. 


897 


(GENERAL  INDEX,  Cont.) 

EVIDENCE,  Cont. 

Of  right  to  enter  under  the  Immigration  acts  not  prescribed  by 

statute  553 

Ordinary  rules  of. 

Not  applicable  in  deportation  proceedings  596 

Prescribed  by  statute  under  the  Chinese  Exclusion  laws. 

Documentary  evidence  576 

Other  evidence  576 

Prescribed  by  statute  under  the  Immigration  acts. 

In  the  case  of  assisted  aliens 560 

In  the  case  of  aliens  whose  ticket  or  passage  is  paid  for  with 

the  money  of  another  560 

Right  of  Government  to  limit  and  prescribe 141 

Rules  of,  applicable  to  ordinary  civil  and  criminal  procedure,  not 

applicable  to  deportation  procedure 552 

Sufficiency  of,  to  prove  status  of  Chinese  persons 603 

Sufficiency  of,  to  prove  citizenship  of  Chinese  in  deportation 

proceedings 569 

Constitutional  power  of  Congress  to  prescribe 564 

Unverified  telegraphic  dispatch  that  administrative  appeal  has 

been  disposed  of  does  not  constitute 603 

EXCEPTIONS  OF  STATUTE. 

When  sufficiently  negatived  in  indictment  for  unlawfully  landing 

Chinese  106 

EXCLUSION  OR  EXPULSION. 

Governmental  right  of  3 

Of  aliens,  indiscriminate,  See  Aliens. 

Exercise  of  the  power  of,  in  the  United  States 14 

Exercise  of,  in  the  United  States  by  treaty 21 

Exercise  of  the  power  in  the  United  States  vested  in  Congress. . . 15 

Limitations  placed  by  international  law  on  governmental  exercise 

of  right  of  9 

Limitations  imposed  on  the  exercise  of  the  right  by  the  municipal 

law  of  the  United  States  15, 128 

Of  certain  classes  justifiable  although  classes  affected  may  be  citi- 
zens of  a particular  nation  15 

Unjustifiable  when  based  solely  on  the  fact  that  the  foreigner  be- 
longs to  a particular  nation  15 

EXEMPTIONS. 

From  the  operation  of  the  acts  on  Immigration 144 

EXPULSION. 

Does  not  constitute  extradition  6 

Governmental  right  of  ‘ «.  3 

May  be  justifiable  as  a war  measure 8 

Limitations  under  International  Law  on  governmental  right  of  . . 9 

Not  synonymous  with  banishment  6 

Causes  justifying  in  European  countries  5 


898  General  Index. 

( 

(GENERAL  INDEX,  Cont.) 

EXPULSION,  Cont. 

When  legitimate  under  International  Law 

EXTRADITION. 

See  Expulsion. 

FACT. 

Questions  of. 

See  Questions  op  Fact. 

FAILURE  TO  TESTIFY,  evidential  effect  of 

Cases  distinguished  where  defendant  has  and  has  not  been  re- 
quested to  do  so  

FAIR  HEARING. 

Allegation  of,  in  petition  for  issuance  of  writ  of  habeas  corpus 
justifies  judicial  review  to  the  extent  of  determining 

whether  such  hearing  was  fair 

Necessity  for  

What  constitutes  

Involves  opportunity  to  be  heard 

When  denied. 

When  administrative  officers  refuse  to  pass  upon  all  evidence 

offered  by  the  applicant  in  deportation  proceedings 

Where  administrative  officers  fail  to  pass  on  question  before 

them  

When  rendered  by  Board  of  Special  Inquiry,  one  of  whose 
members  was  the  Inspector  referring  the  case  of  the 

alien  excluded  to  the  Board  

By  refusal  of  administrative  officer  to  give  force  and  effect  to 
judgment  of  United  States  Commissioner  holding  that 
person  of  Chinese  descent  is  a citizen  of  the  United  States 
Mere  allegation  of,  insufficient  to  justify  examination  of  case 

on  the  merits  in  habeas  corpus  

Necessity  for,  under  the  laws  of  the  United  States 

When  not  denied. 

Because  excluding  decision  rendered  by  Assistant  Secretary 

of  Commerce  and  Labor 

Where  administrative  officers  base  their  decision  on  applicant’s 
personal  appearance  and  refuse  to  give  credence  to  other 

testimony  

Because  defendant  has  no  knowledge  of  the  English  language 

in  which  the  hearing  is  carried  on 

Whether  or  not  denied. 

When  admission  of  the  commission  of  an  offence  on  which  the 
excluding  decision  is  based  was  improperly  obtained  .... 

FINALITY  OF  ADMINISTRATIVE  DECISIONS. 

As  to  right  of  alien  to  remain  in  the  United  States 

Under  earlier  acts  

Conflict  of  judicial  decision  under  the  present  law  

Judicially  upheld  although  prisoner’s  claim  of  United  States 


General  Index. 


899 


(GENERAL  INDEX,  Cont.) 

FINALITY  OF  ADMINISTRATIVE  DECISIONS,  Cont. 

citizenship  based  on  unimpeached  marriage  certificate  to 

citizen  of  the  United  States  520 

When  decision  that  alien  was  likely  to  become  a public  charge, 

not  final  . 519 

Not  generally  subject  to  judicial  review  on  the  ground  that  the 

evidence  offered  insufficient  to  support  them 519 

Must  constitute  a bona  fide  decision 518 

Not  final  when  there  is  absolutely  no  evidence  to  support  it  ... . 519 

Not  final  where  deportation  ordered  before  final  departmental 

decision  reached  on  appeal 517 

Not  final  when  excluding  decision  not  rendered  with  regard  to 

precise  claim  on  which  right  to  enter  is  based 517 

Not  final  with  regard  to  certain  classes 502 

Domiciled  aliens  returning  to  the  United  States  502 

Contrary  view  504 

Citizens  of  Insular  possessions  506 

Alien  seamen  507 

On  questions  of  fact  480 

Favorable  findings  not  final 511 

Questions  of  fact  only  are  final  512 

Final  only  on  the  particular  fact  on  which  the  right  to  is  based  510 
Finding  as  to  mercantile  status  not  final  as  to  citizenship  of  per- 
sons of  Chinese  descent 510 

Finding  as  to  right  to  land  not  final  as  to  right  to  remain 510 

Excluding  decision  final  as  to  right  of  alien  to  enter  at  any  and 

all  ports  of  the  United  States 511 

Not  final  when  rendered  in  deference  to  an  unauthorized  De- 
partmental regulation  511 

FIRM  STYLE. 

Names  of  partners  need  not  appear  in 612 

FINE.  See  Act  of  Feb.  20,  1907. 

Imposition  of,  for  bringing  diseased  aliens  into  the  United  States 

not  a punishment  for  crime 132 


FIRST  ENTRY. 

Date  of,  as  affecting  the  running  of  three  year  period. 

See  Three- Year  Period. 

FORFEITURE  OF  VESSEL. 

For  violation  of  Chinese  Exclusion  Acts. 

See  Vessel. 

GAMBLERS. 

See  Chinese  Laborers. 

GRESHAM,  SECRETARY  OF  STATE. 

On  ‘ ‘ Right  under  International  Law  of  a foreigner  not  to  be  ex- 
pelled without  a hearing”  11 

HABEAS  CORPUS. 

Absence  of  a fair  hearing  and  of  opportunity  to  produce  evidence 


900  General  Index. 


(GENERAL  INDEX,  Cont.) 

HABEAS  CORPUS,  Cont. 

foundation  of  court’s  jurisdiction  in 514' 

Facts  into  which  the  courts  may  not  inquire  in  cases  originating 

in  deportation  proceedings  81 

Grounds  on  which  the  courts  may  assume  jurisdiction  in 546 

Courts  may  inquire  into  the  jurisdiction  exercised  by  administra- 
tive officers  in  481 

Right  of  District  Court  to  issue  writ  of,  on  behalf  of  alien  held 

for  deportation  480 

Whether  or  not  administrative  officers  proceeding  according  to 

law  open  to  inquiry  on 512 


Petition  for  writ  of. 

What  it  must  contain  to  justify  a preliminary  judicial  hearing  541 
Containing  no  grounds  for  issuance  of  writ  except  allegation 


of  citzenship  fails  to  make  out  a prima  facie  case 541 

Must  make  out  a prima  facie  case 541 

When  petitioner  entitled  to  discharge  on. 

Where  administrative  officers  seek  to  deport  him  for  importing 
immoral  women  in  the  absence  of  a conviction  of  the  of- 
fense   512 

When  excluding  decision  not  bona  fide  or  when  capricious  ....  519 

When  held  for  deportation  before  a final  decision  rendered  on 

appeal  517 

When  a Chinese  bride  seeking  to  join  her  husband  who  is  law- 
fully in  the  United  States 486 

On  showing  by  Chinese  merchant  of  impossibility  of  obtaining 

certificate  of  identity 486 

When  domiciled  Chinese  laborer  is  entitled  to  discharge  on  . . 486 

Chinese  laborer  without  return  certificate  who  has  never  actually 

left  the  United  States 486 

When  opportunity  to  be  fully  heard  denied 514 

When  he  is  found  to  be  a citizen  of  the  United  States 486 

When  domiciled  here  and  detained  as  alien  immigrants 487 

When  refused  the  privilege  of  special  inquiry 488 

When  held  for  deportation  in  absence  of  examination  as  to  his 

right  to  enter  488 

When  prevented  by  intimidation  from  employing  counsel 540 

When  Board  of  Special  Inquiry  fails  to  pass  on  all  the  facts 

on  which  right  to  enter  is  based 537 

When  petitioner  not  entitled  to  discharge  on. 

On  ground  that  his  private  papers  have  been  searched  by  in- 
spection officers  525 

On  ground  that  only  authority  for  his  arrest  is  an  Immigra- 
tion Rule  540 

In  the  absence  of  an  administrative  appeal 498,537 

Where  administrative  finding  is  that  it  is  not  his  intention  as 
avowed  to  pass  in  transit  through  the  United  States 


537 


General  Index.  901 

(GENERAL  INREX,  Cont.) 

HABEAS  CORPUS,  Cont. 

Where  administrative  officer  refuses  to  give  faith  to  ‘ ‘ section  6 

certificate  ’ ’ presented  by  him 536 

On  mere  allegation  of  American  citizenship  by  Chinese  person  497 

On  finding  of  fact  that  he  is  an  immigrant 485 

Where  copies  of  alleged  unlawful  process  do  not  accompany  the 

petition  540 

Where  petitioner  has  married  a citizen  of  the  United  States  . . 520 

From  Commissioner’s  finding  that  certificate  of  registration  is 

spurious 581 

Where  domiciled  prostitute  has  been  discharged  in  deportation 
proceedings  brought  against  her  under  the  Act  of  Feb.  20, 

1907  where  she  is  shown  to  have  committed  acts  of  prosti- 
tution after  Marph  26,  1910  540 

Although  he  has  been  found  entitled  to  enter  by  a Board  of 

Special  Inquiry  540 

HAWAII. 

Act  of  Congress  of  April  30,  1900,  to  provide  a government  for 

the  territory  of  123 

Citizens  of  the  Republic  declared  to  be  citizens  of  the  United 

States  123 

Status  of  non-resident  minor  children  of  naturalized  citizen  of . . 126 
Status  of  person  born  in,  prior  to  its  existence  as  a republic.  ...  126 
Whether  son  born  of  Chinese  parents  in  Hawaii  is  a citizen  of  the 

United  States  124 

Whether  wife  and  children  of  Chinese  person  naturalized  in  en- 
titled to  enter  124 

Operation  of  Immigration  laws  in 123 

HEARING. 

Not  denied  because  all  evidence  excluded  except  that  of  medical 
officer  as  to  existence  of  disease  in  aliens  before  embarka- 
tion for  the  United  States 141 

Not  denied  because  only  evidence  allowed  is  that  prescribed  by 

Congress  141 

Right  under  International  law  of  a foreigner  about  to  be  ex- 
pelled to  11 

See  Fair  Hearing. 

HIGH  BINDERS. 

See  Chinese  Laborers. 

HUSBAND. 

Effect  on  wife  of  naturalization  of. 

See  Naturalization. 

INDICTMENT. 

For  aiding  or  abetting  landing  of  Chinese.  See  Landing. 

Negativing  of  exceptions  in.  See  Exceptions. 

INSPECTOR  OF  IMMIGRATION. 

Excluding  decision  of,  final  in  the  absence  of  administrative 


902  General  Index. 


(GENERAL  INDEX,  Cont.) 

INSPECTOR  OP  IMMIGRATION,  Cont. 

appeal  485 

INTERNATIONAL  LAW. 

Confers  no  right  upon  States  to  arbitrarily  expel  or  exclude  ....  11 

Gives  no  right  to  an  alien  to  enter  a foreign  State 3 

Limitation  placed  thereunder  on  the  right  of  governments  to  ex- 
clude or  expel.  See  Exclusion  or  Expulsion. 


Obligations  imposed  thereunder  on  States  to  protect  aliens  who 


have  not  been  granted  the  right  to  enter 10 

Rights  conferred  by,  on  aliens  who  have  been  permitted  to  enter 

a foreign  State  10 

Rights  conferred  upon  resident  aliens  thereunder  always  sub- 
ject to  restrictions  imposed  by  municipal  legislation  ....  10 

IMMIGRATION  ACTS. 

Application  of,  to  Chinese.  See  Act  of  Feb.  20,  1907. 

Inapplicability  of,  to  special  classes. 


Seamen,  Iona  -fide 472 

Seamen  in  hospital  on  sick  leave 473 

1 1 Horsemen  ’ 1 if  not  discharged  at  parts  of  entry 473 

Seamen,  Chinese,  but  not  where  voyage  was  made  with  intent 

to  enter  the  country 474 

Stowaways  474 

Porto  Ricans  475 

Filipinos  475,  476 

Of  Aug.  3,  1882. 

Head  tax  provision  of  not  violative  of  existing  treaty  rights  . . 45 

Section  2. 

Secretary  of  Treasury  charged  with  executing  the  provisions 

thereof 478 

Section  3. 

Secretary  of  Treasury  required  to  establish  rules  and  regu- 

tions  for  enforcement  of  the  act 478 

Of  March  3,  1903. 

Section  9. 

Imposing  administrative  fine  for  bringing  diseased  aliens  to 

the  United  States  held  constitutional  132 

IMMIGRATION. 

Defined  429 

Laws. 

Purpose  of  with  regard  to  the  exclusion  of  aliens  distinguished 

from  that  of  the  Chinese  Exclusion  laws  370 

Regulation  of,  by  treaty 21 

IMPRISONMENT  AT  HARD  LABOR. 

Held  not  to  constitute  good  cause  for  failure  to  register 364 

JOINT  RESOLUTION  OF  JULY  7,  1898  123 

JUDGMENT  OF  DISCHARGE.  See  United  States  Commissioner, 
Deportation  Procedure. 


General  Index.  903 

(GENERAL  INDEX,  Cont.) 

JUDGMENT  OF  DISCHARGE,  Cont. 

By  United  States  Commissioner  in  deportation  proceedings  as 

affecting  right  of  Chinese  to  remain 345 

Issued  by  United  States  Commissioner  not  conclusive  evidence 
that  the  person  presenting  it  is  the  person  mentioned 
therein 602 

JUDICIAL  HEARING. 

Not  to  be  granted  merely  because  the  petitioner  claims  that  he 

is  an  American  citizen  496 

Showing  necessary  to  obtain.  See  Habeas  Corpus. 

JUDICIAL  NOTICE. 

Courts  will  take,  of  fact  that  an  alien  possesses  physical  charac- 
teristics of  Chinese  person  598 

JUDICIAL  REVIEW  OF  ADMINISTRATIVE  DECISIONS 477 

Right  of  prior  to  August  18,  1894  483 

Right  of  after  August  18,  1894  489 

Distinguished  492 

When  proper. 

In  matters  going  to  the  jurisdiction  of  the  executive  officers. 

Where  alien  excluded  not  subject  to  the  operation  of  the 

Immigration  laws  502 

When  applicant’s  status  has  already  been  definitely  decided 

by  competent  authorities  507 

Where  departmental  jurisdiction  lost  by  change  of  alien’s 

status 508 

Where  adminstrative  finding  involves  a question  of  law.  . . .496,  512 
In  case  of  arbitrary  exercise  of  authority. 

Where  a fair  hearing  is  denied 513 

Where  opportunity  to  be  heard  denied 514 

Where  executive  officers  fail  to  consider  all  the  evidence  sub- 
mitted   515 

Where  the  right  of  administrative  appeal  denied  516 

Where  executive  officers  fail  to  pass  on  all  questions  before 

them  517 

Where  departmental  finding  is  not  bona  fide  “decision”  ..  518 

Where  departmental  authority  is  abused 524 

JURISDICTION  OF  ADMINISTRATIVE  OFFICERS. 

Matters  going  to  485-495 

May  be  inquired  into  by  the  courts,  in  habeas  corpus 481 

Not  affected  by  “disregard”  of  “Section  6 certificate” 536 

Includes  right  to  determine  identity  of  persons  presenting  docu- 
ments purporting  to  entitle  them  to  admission 508 

Exclusive  as  to  questions  of  fact 512 

Does  not  extend  to  aliens  not  subject  to  the  operation  of  the 

immigration  law  502 

See  Finality  of  Administrative  Decisions,  Judicial  Re- 
view, Habeas  Corpus. 


904  General  Index. 

(GENERAL  INDEX,  Cont.) 

JURY. 

See  Trial  by  Jury. 

LABORER. 

As  defined  in  Act  of  Nov.  3,  1893  not  to  be  interpreted  as  ex- 
cepting therefrom  persons  who  were  laborers  within  the 


meaning  of  the  terms  of  the  treaty  of  1880  604 

Chinese,  who  becomes  merchant. 

Effect  of  failure  to  register  during  registration  period 352 

Term  defined  in  Chinese  Exclusion  Act  of  Nov.  3,  1893  604 

LANDING. 

Of  Chinese  laborers  by  master  of  vessel. 

Penalty  for  104 

Of  Chinese  seamen  not  unlawful 106 

Of  Chinese  persons. 

Indictment  for, 

Sufficiency  of  106 

Not  unlawful  unless  accomplished  “ knowingly” 106 

Not  unlawful  as  to  members  of  crew  shipping  from  United 

State  for  a return  voyage 105 

Sufficient  evidence  of  107 

Aiding  and  abetting  the 105 

What  constitutes 107 

When  indictment  for  insufficient  109 

When  indictment  for  will  be  sustained 109 

See  Detention. 

LAWFUL  RESIDENCE  OF  MINOR  CHILD  OF  MERCHANT. 

Presumed  by  the  fact  of  lawful  entry 600 

LISTS  OF  CHINESE  PASSENGERS. 

Penalty  for  failure  to  deliver Ill 

MANUAL  LABOR. 

As  affecting  prior  mercantile  status  under  the  Chinese  Exclusion 

Acts  613 

Effect  of  engagement  in  immediately  on  landing  by  Chinese  enter- 
ing on  merchant’s  certificate 362 

Performed  by  minor  son  of  Chinese  merchant. 

Effect  of  on  communicated  status  370 

MARRIAGE. 

A pure  question  of  fact  for  the  determination  of  the  adminis- 
trative officers  383 

Ceremony  performed  in  China,  when  bridegroom  is  in  United 
States. 

Effect  of 368 

Of  alien  to  citizen  of  the  United  States. 

Effect  of  on  jurisdiction  of  administrative  officers 508 

Of  alien  woman  to  citzen  of  the  United  States,  as  exempting  her 
from  the  operation  of  the  Immigration  laws 


386 


General  Index. 


905 


(GENERAL  INDEX,  Cont.) 

MARRIAGE,  Cont. 

Of  Chinese  woman  to  American  citizen. 

Effect  of  367,384 

Of  widow  of  Chinese  merchant  to  laborer. 

Effect  of  360 

Sham,  between  American  citizen  and  alien  woman,  effects  no 

change  in  political  status  383 

Sham,  of  Chinese  prostitute  to  American  citizen. 

Effect  of  368 

Void  on  grounds  of  public  policy. 

Effects  no  change  in  political  status 383 

When  effect  of  is  to  avoid  deportation 410 

Held  incapable  of  exempting  woman  from  operation  of  Immi- 
gration laws  404 

Opinion  criticised  411 

Whether  marriage  confers  citizenship  upon  alien  women  who  have 
not  resided  in  the  United  States. 

See  Residence. 

MASSACHUSETTS. 

Act  April  20,  1837,  held  unconstitutional  59 

MERCANTILE  STATUS. 

Loss  of  during  registration  period. 

Effect  of  on  obligation  of  Chinese  laborer  to  register 587 

Of  Chinese  persons. 

Production  of  partnership  books  not  necessary  to  establish. . . . 612 

Of  returning  Chinese. 

Special  rules  of  evidence  required  for  proof  of 611 

Sufficiency  of  proof  of  facts  constituting. 

Where  defendant  conducts  as  a merchant’s  clerk,  business  in 

which  he  has  a partnership  interest 611 

The  bona  fide  engagement  by  a Chinese  person  in  mercantile 
pursuits  even  though  his  name  does  not  appear  in  the  firm 

name  or  in  partnership  accounts 612 

Where  the  business  is  carried  on  in  the  firm  name  which  in- 
cludes the  name  of  the  defendant 612 

Although  partner’s  name  does  not  appear  in  firm  name  pro- 
vided mercantile  partnership  proven  by  other  facts 612 

Sufficiency  of  proof  of  facts  insufficient  to  establish. 

Partnership  interest  of  defendant  in  two  mercantile  firms  when 
he  himself  is  head  cook  at  a restaurant  in  which  he  has 
an  interest  and  has  provided  himself  with  a laborer’s 

certificate  612 

When  defendant  spends  half  his  time  cutting  and  sewing  gar- 
ments   612 

When  defendant  spends  part  of  his  time  in  domestic  and  other 

manual  labor  612 

See  Evidence. 


906  General  Index. 

(GENERAL  INDEX,  Cont.) 

MERCHANT. 

Chinese  is  not,  when  business  conducted  in  alleged  partner’s 


name 122 

Chinese,  who  becomes  a laborer  has  no  right  to  re-enter  the 

United  States  359 

Defined  in  the  Act  of  Nov.  3,  1893  611 

Keeper  of  “Chow  House”  is  not  122 

Held  to  become  a laborer  during  imprisonment  at  hard  labor  ....  364 

Validity  of  decision  doubtful  364 

MINOR  CHILD. 

Loss  of  communicated  status  by  369 

Of  naturalized  alien  who  has  not  resided  in  the  United  States. 

Subject  to  the  Immigration  Laws  381 

Of  Chinese  of  the  exempt  classes. 

Right  to  enter  or  remain  in  the  United  States  369 

Not  a laborer 369 

MUNICIPAL  STATUS. 

Defined 323,338 

Under  the  Chinese  Exclusion  Laws 342 

Acquisition  of  under  the  Immigration  Laws 370 

Distinguished  from  unlawful  residence  426 

Distinguished  from  domicile 340 

How  acquired  under  the  Immigration  Act 372 

Loss  of  . . 353 

By  violation  of  exclusion  laws 358 

By  re-entering  at  port  other  than  that  designated  by  law 363 

Of  Chinese  laborers. 

When  not  lost  by  failure  to  register 357 


See  Status. 

MUTE. 

See  Standing  Mute. 

NATIONALITY. 

Chinese. 


When  burden  of  proof  not  upon  the  Government  to  show 598 

When  burden  is  on  the  Government 598 

Prima  facie  evidence  of  598 

When  established  on  the  principle  of  res  ipsa  loquitur 598 

Exclusion  or  expulsion  based  on,  unjustifiable. 

See  Exclusion  or  Expulsion. 

NAME,  OF  CHINESE  MERCHANT. 


Need  not  appear  in  firm  style  in  order  to  establish  his  mercan- 


tile status  612 

NATURALIZATION. 

A personal  privilege 385 

By  marriage. 

Women  who,  if  aliens,  would  be  excludable  under  the  Immigra- 
tion laws,  held  incapable  of  404 


General  Index.  i 907 

(GENERAL  INDEX,  Cont.) 

NATURALIZATION,  Cont. 

Of  father. 

Effect  of  on  their  minor  children 379 

Of  Chinese  persons  prohibited  by  the  Act  of  July  5,  1884  567 

Of  husband. 

Effect  of  on  wife  383 

NATURALIZATION  STATUTES  of  the  United  States  do  not  apply  to 

Chinese  567 

NEW  YORK. 

Act  of  Feb.  11,  1824  57 

Act  of  May  31,  1881 60 

OLNEY,  SECRETARY  OF  STATE. 

On  arbitrary  exercise  of  right  of  expulsion 13 

OPPORTUNITY  TO  BE  HEARD. 

See  Fair  Hearing. 

PARTNERSHIP  BOOKS. 

When  production  of  necessary  in  order  to  prove  mercantile  status  121 
When  unnecessary  612 

PASSENGER  LIST. 

As  evidence  in  deportation  proceedings 602 

See  Lists. 

PASSENGER  TAX  imposed  by  the  State  of  New  York. 

Invalidity  of  60 

PASSPORT. 

As  evidence  of  United  States  citizenship.  See  Evidence. 

In  hands  of  Chinese  person,  when  effect  of  not  rendered  void 

by  statement  of  Inspector  601 

Foreign,  in  hands  of  alien  ineffective  as  to  right  of  Government 

to  deport  601 

PERSONAL  APPEARANCE  of  alien. 

As  evidence  of  his  admissibility  under  the  Immigration  acts. 

See  Evidence. 

PHILIPPINE  COMMISSION. 

Act  No.  317  of  116 

Act  No.  335  (Customs  administrative  act)  113 

Act  No.  702  of  117 

Purpose  of 117 

Registration  of  Chinese  under  authority  of  Collector  of  Customs 

authorized  by  117 

General  powers  of  Collector  of  Customs  under 117 

Form  of  certificate  prescribed  by 117 

Result  of  failure  of  Chinese  to  get  certificates  under 117 

Certificates,  to  whom  issued  118 

Prohibition  against  the  falsification  of  certificates 121 

Definition  of  the  terms  laborer  and  merchant  under 122 


908  General  Index. 


(GENERAL  INDEX,  Cont.) 

PHILIPPINE  ISLANDS. 

Customs  Department  of,  vested  with  the  power  of  administering 

Immigration  laws  in  115 

Insular  Collector  of  Customs  of,  charged  with  the  execution  of 

Immigration  laws  in  113 

Legislation  regulating  the  admission  of  immigrants  into 116 

Legislation  regulating  the  admission  to  or  residence  in  of  Chinese  116 

Operation  of  Immigration  and  Exclusion  laws  in Ill 

Organic  act  of  (Act  of  Congress  of  July  1,  1902)  effect  of  re- 
garding the  regulation  of  immgration  in  the  Philip- 
pine Islands  113 

War  Department  Circular  No.  13  regarding  operation  of  Im- 
migration laws  in  112 

Acting  Secretary  of  War,  order  of  June  6,  1899  regarding  im- 
migration regulations  for  112 

Circular  of  Collector  of  Customs  regarding  enforcement  of  Im- 
migration regulations  in  112 

PHILLIMOHE,  SIR  ROBERT. 

On  obligation  of  States  to  protect  resident  aliens 10 


PHYSICAL  APPEARANCE  of  alien  as  evidence  of  his  Chinese  nation- 
ality. 

See  Nationality,  Evidence. 

POLYGAMISTS,  domiciled. 


Right  of,  to  return  to  this  country  456 

PORTO  RICO. 

Act  of  Congress  of  April  12,  1900  providing  Civil  Government  for  126 

Application  of  Chinese  Exclusion  and  Immigration  laws  to 127 

Operation  of  Immigration  laws  in  128 

Residents  of,  not  citizens  of  the  United  States  but  not  aliens  for 

the  purpose  of  the  Immigration  laws  128 

PORTS  OF  ENTRY  FOR  ALIENS. 

Power  of  Congress  to  designate  through  administrative  officers  . . 15 

PRADIER-FODERE. 

On  governmental  right  to  exclude  or  expel 4 

When  expulsion  of  foreigners  legitimate  under  International  law  12 


PRESENCE  of  alien  women  in  this  country. 

Whether  necessary  to  confer  citizenship  by  marriage  to  Amer- 


ican citizen. 

See  Residence. 

PRESIDENT. 

Powers  of. 

Under  Act  of  May  5,  1882  52,  n. 

Under  the  Alien  Act  of  1798  51 

PRESUMPTION. 


Against  birth  in  the  United  States.  See  Evidence  of  Birth. 

As  to  the  lawful  residence  of  minor  child  of  merchant.  See  Law- 
ful Residence. 


General  Index. 


909 


(GENERAL  INDEX,  Cont.) 

PRESUMPTION,  Cont. 

Of  admissibility. 

Absence  of  certificate  in  possession  of  Chinese  seeking  admis- 
sion as  members  of  exempt  classes  creates 565 

Of  unlawful  presence,  failure  of  Chinese  laborer  to  register 

creates  565 

Of  unlawful  residence  of  minor  child  of  Chinese  merchant.  See 
Certificate. 

Raised  by  failure  of  Chinese  domiciled  merchant  to  have  in  his 

possession  a “section  6 certificate, ’ ’ See  Certificate  ...  601 
Of  birth  in  China.  See  Birth. 

PRIMA  FACIE  EVIDENCE. 

Afforded  by  “section  6 certificate. ’ ’ 

How  rebutted  579 

Of  right  to  enter  or  remain. 

Certificates  issued  under  the  Chinese  Exclusion  Acts,  constitute  580 
Of  right  to  remain. 

Fact  that  Chinese  person  has  been  permitted  to  land  without  a 

certificate  does  not  constitute  580 

PRIMA  FACIE  PROOF  OF  RIGHT  TO  REMAIN. 

See  Evidence. 

PRIOR  ENTRY. 

Mere  fact  of  does  not  vest  alien  with  right  to  return 442 

PROOF. 

Burden  of. 

See  Burden  of  Proof. 

PUNISHMENT  FOR  CRIME. 

Deportation  not  134 

PUNISHMENTS. 

Constitutional  guarantee  against  cruel  and  unusual,  not  available 

in  deportation  proceedings  131 

QUESTIONS  OF  FACT. 

Determination  of,  for  administrative  officers  and  not  for  the 

courts 530 

Whether  alien  an  immigrant  held  to  be  a mixed  question  of  law 

and  fact  530 

Thought  to  be  a pure  question  of  fact 532 

Finality  of  administrative  findings  on.  See  Finality. 

Whether  alien  is  affected  with  loathsome  disease 537 

Whether  alien  is  a public  charge 536 

Whether  alien  is  seeking  to  remain  permanently  in  or  pass  in 

transit  through  the  United  States 536,537 

Whether  person  presenting  United  States  passport  is  a citizen  of 

the  United  States  537 

Question  whether  an  alien  an  immigrant  distinguished  from  ques- 
tion of  law  as  to  whether  he  is  subject  to  the  operation  of 
the  Immigration  acts 531 


910  General  Index. 

(GENERAL  INDEX,  Cont.) 

QUESTIONS  OF  FACT,  Cont. 

Whether  any  law  or  treaty  is  applicable  to  a given  alien  is  not 


a question  of  fact  534 

Citizenship  a question  of  fact  in  the  case  of  Chinese 534 

Citizenship  may  be  a mixed  question  of  law  and  fact 534 

Whether  relationship  of  father  and  child  exists 535 

Whether  relationship  of  husband  and  wife  exists 535 

Whether  Chinese  belong  to  exempt  class 533 

Question  of  identity  is 536 

Whether  alien  is  an  anarchist 536 

REFUSAL  TO  TAKE  THE  STAND. 

Evidential  effect  of  597 

Where  not  sufficient  to  justify  order  of  deportation 597 

RES  ADJUDICATA. 

Discharge  from  deportation  proceedings  brought  under  Immigra- 
tion Act  does  not  constitute  540 

RESIDENCE. 

In  the  United  States. 

Not  a prerequisite  to  the  acquisition  of  citizenship  by  an 

alien  woman 388,396,399 


Of  alien  women  married  to  American  citizen  not  necessary  to 

exempt  them  from  the  operation  of  the  Immigration  law  400 

Length  of. 

As  evidence  of  lawful  presence.  See  Evidence. 

Of  Chinese  persons  in  the  United  States,  evidence  of.  See  Evi- 
dence. 

Unlawful,  of  aliens  in  the  United  States  gives  them  no  right  to 
invoke  Constitutional  guarantees  in  deportation  proceed- 
ings   20 

RESIDENT  ALIENS. 

See  Domiciled  Aliens. 

RESTAURANT  KEEPERS. 

See  Chinese  Laborers. 

RETURN  to  the  United  States. 

Alien’s  right  of,  dependent  on  the  existence  of  domicile  in  the 


United  States  442 

Of  deported  aliens  made  a criminal  offence 133 

When  aliens  held  to  be  immigrants  on 443 

Right  to,  generally  denied  in  the  case  of  domiciled  prostitutes  . . 466 

General  view  criticised  467 

Right  of  prostitutes  to  return  affirmed 468 

Situation  remedied  with  regard  to  persons  actually  practicing 

prostitution  by  the  Act  of  Mar.  26,  1910  471 

RIGHT  OF  APPEAL. 

Denial  of. 

Affords  ground  for  relief  in  habeas  corpus 516 

Denied  where  appeal  papers  not  forwarded  to  Secretary  of 

Treasury  516 


General  Index. 


911 


(GENERAL  INDEX,  Cont.) 

RIGHT  OF  APPEAL,  Cont. 

Where  a part  only  of  the  evidence  is  forwarded  to  the  Secre- 
tary   516 

Where  there  was  no  hearing  on  the  merits  before  the  Sec- 
tary   516 

ROLIN-JAEQUEMYNS. 

On  limitations  on  the  exercise  of  the  right  of  expulsion  imposed 

by  international  law 12 

SEAMEN,  CHINESE. 

Escape  of,  to  American  soil  subjects  him  to  deportation 362 

Not  Chinese  laborers  362 

See  Laborers. 

SEARCHES  AND  SEIZURES. 

Constitutional  guarantee  against  does  not  apply  in  the  case  of 

aliens  seeking  admission  into  the  United  States 525 

Constitutional  guarantee  covering,  not  available  to  aliens  in  de- 
portation proceedings  19 

SEARCHING  AND  SEIZING  alien  7s  private  papers  affords  no  ground 

for  relief  in  habeas  corpus  525 

SECRETARY  OF  THE  TREASURY. 

Empowered  to  prescribe  rules  for  the  admission  of  Chinese  per- 
sons into  the  United  States  by  Act  of  Sept.  13,  1888  478 

Power  of,  to  enforce  the  Immigration  and  Exclusion  laws 

transferred  to  the  Department  of  Commerce  and  Labor  . . 479 

Power  of,  to  enter  into  contracts  with  state  officers  for  the  en- 
forcement of  the  Act  of  Aug.  3,  1882  478 

Withdrawn  by  Act  of  Mar.  3,  1891  .476,  487 

SHIP’S  LIST. 

See  Passenger  List. 

STANDING  MUTE. 

Held  a badge  of  illegality 597 

Held  an  admission  that  defendant  is  unlawfully  in  the  country. . . 597 

Held  not  to  constitute  such  admission 597 

Held  to  constitute  unfavorable  circumstance  only  against  de- 
fendant   597 

May  be  taken  into  consideration  in  ordering  deportation 597 

STATE  STATUTE. 

Authorizing  detention  of  aliens  when  constitutional 60 

STATUS. 

Communicated,  defined 316,  324 

Loss  of  366 

Whether  acquirable  by  wives  or  minor  children  of  resident 

Chinese  laborers  349,  351 

Status  of  wife  lost  by  death  of  husband 366 

International  324 

, Mercantile,  acquired  by  Chinese  laborer  after  unlawful  entry  does 

not  exempt  him  from  deportation  352 

Municipal,  meaning  of,  in  its  specific  application  to  the  Immi- 
gration and  Exclusion  laws  338 


912  General  Index.  ' 

(GENERAL  INDEX,  Cont.) 

STATUS,  Cont. 

Of  aliens  only  qualifiedly  permanent 339 

Acquisition  of  342 

By  Chinese  laborers  through  registration 345 

By  expiration  of  three-year  period 339,  341 

Under  the  Chinese  Exclusion  acts 342 

Under  the  Immigration  Act 370 

Dependent  on  production  of  section  6 certificate  343 

Does  not  give  rise  to  vested  right  to  remain 344 

Under  Exclusion  acts,  how  affected  by  Act  of  August  18, 

1894  346 

Loss  of. 

Under  Chinese  Exclusion  laws  358 

By  Chinese  merchant  imprisoned  at  hard  labor  364 

By  Chinese  merchant  who  becomes  a laborer  359, 360 

By  failure  to  procure  return  certificate 361 

By  death  of  the  party  353 

By  acts  of  Congress 353 

By  acts  of  the  party  358 

By  departure  of  Chinese  merchant  who  returns  a laborer  ...  359 

Exceptions : 

Where  Chinese  laborer  fails  when  a merchant  to  register 

during  registration  period 360 

Where  absence  of  members  of  exempt  classes  is  prolonged  360 
Where  Chinese  laborer  does  not  actually  leave  the  United 

States 361 

Where  departure  of  Chinese  laborer  is  brief 358 

Where  domiciled  Chinese  merchants  fail  to  obtain  section  6 

certificate 355 

Length  of  residence  no  presumption  of 343 

Subject  to  termination  by  subsequent  legislation  344 

Aliens  unlawfully  in  the  United  States  pending  running  of 

three-year  period  have  no  340 

Exists  independently  of  running  of  three-year  period  when 

entry  lawful 341 

Distinguished  from  the  acquisition  of  domicile 340 

Distinguished  from  status  of  alien  unlawfully  in  the  United 

States 341 

Chinese  laborers  cannot  acquire 329 

Of  absent  Chinese  laborers  terminated  by  Act  of  Oct.  1,  1888  356 

Personal,  defined % 328 

Burden  of  proof  on  Chinese  to  show 332 

Distinguished  from  physical,  moral  or  mental  attributes  in 

connection  with  the  immigration  law 333 

Preliminary 334 

Does  not  involve  allegiance  in  strict  sense  of  term 335 


General  Index. 


913 


(GENERAL  INDEX,  Cont.) 

SUBSEQUENT  ENTRY. 

As  affecting  period  within  which  alien  may  be  deported. 

See  Three- Year  Period. 

SURREPTITIOUS  ENTRY. 

As  proof  of  unlawful  presence  in  the  United  States 598 

TESTIMONY,  uncontradicted. 

Not  necessarily  binding  on  Government 572 

THREE-YEAR  PERIOD. 

Passage  of,  as  affecting  Government's  right  to  deport 463 

Held  deportation  must  take  place  before  the  expiration  of 463 

Held  sufficient  if  deportation  proceedings  commenced  before  ex- 
piration of  463 

Governmental  right  to  deport  not  affected  by  incarceration  of 

alieu  during 463 

Held  to  run  from  date  of  last  entry  464 

Held  to  run  from  date  of  first  entry 464 

TOUCHING  AT  PORT. 

What  constitutes 110 

TRANSIT. 

See  Congress,  Powers  of. 

TREATIES. 

Interpretation  of 45 

Of  no  greater  force  or  effect  than  Act  of  Congress 45,  46 

Repeal  of,  by  implication  not  looked  upon  with  favor 50 

Regulation  of  immigration  by 21 

See  Immigration. 

TREATY. 

Of  Paris. 

Effect  of,  with  regard  to  residents  of  Porto  Rico 126 

Of  July  3rd,  1844  with  China 22 

Of  June,  1858  with  China 23 

Of  July  28th,  1868  with  China  23 

Of  Nov.  17,  1880  with  China 26 

Rights  of  exempt  classes  with  regard  to  entering  and  leaving 
the  United  States,  not  made  dependent  on  frequency  of 

length  of  absence  28 

Abrogation  of  rights  secured  to  Chinese  under  (by  Act.  of 

Oct.  1,  1888)  46 

Did  not  justify  absolute  exclusion  of  Chinese  laborers 28 

Did  not  limit  Chinese  persons  to  diplomatic  remedies 29 

Excluding  provisions  of,  not  applicable  to  wives  and  minor 

children  of  exempt  classes 29 

Purpose  and  effect  of  27 

Right  of  domiciled  Chinese  laborers  to  return  thereunder  ....  28 

Of  March  12,  1888. 

Rejected  by  the  Chinese  Government 30 

Of  Dec.  8,  1894  with  China 29,  30 


914  General  Index. 

(GENERAL  INDEX,  Cont.) 

TREATY,  Cont. 

Property  qualifications  of  Chinese  laborers  to  return  there- 


under   30,  33 

Expiration  of  101 


Did  not  impair  the  right  of  wives  and  minor  children  of 
Chinese  of  exempt  classes  granted  by  the  treaty  of  Nov. 

17,  1880  to  enter  without  certificates  34 

Effect  of  certificate  issued  to  holder  under  Article  3 thereof 

on  his  right  to  remain  in  the  United  States 36 

Effect  of  “most  favored  nation”  clause  on  Chinese  persons 

seeking  to  enter  or  remain  in  the  United  States 38 

Recognition  of,  by  existing  regulations  issued  by  the  Treasury 
Department  governing  the  transit  of  Chinese  laborers 

through  the  United  States  37 

Rights  of  Chinese  under  existing  Chinese  Exclusion  acts  not 

enlarged  thereby  32, 33 

Of  May  6,  1826  with  Denmark  48 

Effect  of  “most  favored  nation”  clause  on  the  head  tax  re- 
quirement of  the  Act  of  August  3,  1882  40 

Of  April  29,  1871  with  Italy  40 

Rights  granted  by,  not  impaired  by  the  provisions  of  the 

Immigration  acts  regarding  deportation  proceedings  ...  40 

Of  March  21,  1895  with  Japan 41 

Rights  secured  Japanese  subjects  by,  not  impaired  by  pro- 
visions of  the  Immigration  acts  regulating  deportation 

proceedings 42 

TREATY  RIGHTS. 

Not  vested  in  the  sense  that  they  cannot  be  divested  by  sub- 
sequent legislation 49 

Secured  to  Chinese  subject  to  repeal  by  subsequent  acts  of  Con- 


gress   49 

TRIAL  BY  JURY. 

Constitutional  guarantee  of,  not  applicable  to  deportation  pro- 
ceedings   131 


UNCONTRADICTED  TESTIMONY. 

See  Testimony. 

UNIMPEACHED  TESTIMONY. 

See  Testimony. 

UNITED  STATES  COMMISSIONER. 

See  Deportation  Procedure. 

Favorable  finding  by,  of  Chinese  person’s  right  to  remain  in  the 


country,  final  482 

But  not  final  if  not  rendered  on  the  merits 482 


Judgment  of  discharge  issued  by,  as  evidence.  See  Evidence. 
Written  statement  by,  concerning  Chinese  person’s  right  to  re- 
main as  evidence.  See  Evidence. 


General  Index. 


915 


(GENERAL  INDEX,  Cont.) 

UNITED  STATES  DISTRICT  COURT. 

See  District  Court. 

UNLAWFUL  ATTEMPTS  TO  ENTER  THE  UNITED  STATES. 

Frequent  occurrence  of  as  affecting  question  whether  Chinese 

already  in  the  country  have  entered  lawfully 598 

UNLAWFUL  ENTRY.  See  Entry. 

By  Chinese  laborer. 

Subjects  him  to  deportation  in  spite  of  subsequent  acquisition 

of  mercantile  status 352 

UNLAWFUL  LANDING. 

See  Landing. 

UNLAWFUL  PRESENCE. 

Of  minor  child  of  Chinese  merchant,  when  not  to  be  presumed. 

See  Certificate. 

UNLAWFUL  RESIDENCE  OF  ALIENS  IN  UNITED  STATES. 

See  Residence. 

VATTEL. 


On  obligation  of  states  to  protect  resident  aliens 10 

VESSEL. 

American,  constitutes  American  territory  for  purpose  of  Chinese 

Exclusion  laws  361 

What  the  term  includes  for  the  purposes  of  the  Chinese  Exclusion 

acts  ’. 110 

When  subject  to  forfeiture  for  violation  of  Chinese  Exclusion  Act  109 
WAITERS  ON  BOARD  SHIP. 

See  Laborers. 

WAR. 


Existence  of,  not  necessary  to  justify  expulsion  or  exclusion  of 


alien  friends 9 

WAR  MEASURE. 

See  Expulsion. 

“WHO  MIGHT  HERSELF  BE  LAWFULLY  NATURALIZED.” 

Meaning  of  term  as  used  in  Act  of  Congress  of  1855  390 

WIFE. 

Effect  of,  on  husband ’s  naturalization.  See  Naturalization. 

Of  Chinese  laborer. 

Status  of  367 


WIVES  AND  MINOR  CHILDREN  OF  CHINESE  OF  EXEMPT 
CLASSES. 

May  enter  the  United  States  without  ‘ ‘ section  6 certificates ' ’ . . 347 
Wben  they  may  acquire  a municipal  status  of  their  own  right . . 348 
Right  to  enter  without  certificate. 

See  Treaty  of  Dec.  8,  1894. 

WITNESS. 

Evidence  of,  against  himself,  competent  evidence  in  deportation 


proceedings  596 

May  be  sworn  to  testify  against  himself  ' 597 


Oa  , <L< | 


